MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           19 December 2002                  
	DOCKET NUMBER:   AR2002071329

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Harry B. Oberg 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records

	Exhibit B - Military Personnel Records (including advisory opinion, if any)

APPLICANT REQUESTS:  That his narrative reason for discharge be changed to medical.

APPLICANT STATES:  In effect, that he was suffering from a psychiatric condition that was not properly treated while he was on active duty.  He submits a copy of a Department of Veterans Affairs (VA) Rating Decision, dated 7 December 2000, which granted him service connection for post traumatic stress disorder (PTSD).  The applicant states that at no time was he a shirker.

EVIDENCE OF RECORD:  The applicant's military records show that:

The applicant was inducted on 16 February 1968 and completed basic combat training and advanced individual training.  He enlisted in the Regular Army August 1969 while stationed in Korea.  

On 29 December 1969, the applicant was found guilty by a special court-martial (SPCM) of being absent without leave (AWOL) for 20 days.  

On 6 September 1970 the applicant was apprehended by civil authorities and returned to military control on 21 September 1970.  He was held in confinement until 6 October 1970, when a second SPCM found him guilty of misappropriation of an automobile and 4 days AWOL.  

The applicant was afforded medical and psychiatric evaluations.  The psychiatric evaluation, conducted 26 October 1970, found the applicant's behavior normal.  He was found to be able to tell right from wrong and to adhere to the right.  He met the medical retention standards of Army Regulation 40-501 and was cleared for any administrative or disciplinary action deemed appropriate.

On 6 November 1970, his command initiated discharge action under Section I, paragraph 6a, Army Regulation 635-212, for unfitness.  The recommendation for discharge cited incidents for which the applicant had been court-martialed as the reason for the discharge.  It described the applicant as having a negative attitude toward the military, lack of self-motivation.  The applicant expressed a desire to get out of service by the most expedient means possible and that he would most likely continue to go AWOL if he were retained.

After consultation with military counsel the applicant acknowledged and waived his right to be represented by counsel, to submit a written statement on his own behalf, and to have a hearing before a board of officers.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an undesirable discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an under other than honorable conditions characterization of service. 
On 18 November 1970, the discharge authority approved the separation under Army Regulation 635-212 and directed that the applicant receive an Undesirable Discharge Certificate.

The applicant was discharged under Army Regulation 635-212 with a separation program number (SPN) of 386, unfitness – established pattern of shirking.  His characterization of service was under conditions other than honorable.  He had 2 years, 7 months, and 3 days of creditable service with 61 days lost due to AWOL and confinement.

The applicant applied to the Army Discharge Review Board and was granted an upgrade of his characterization of service to under honorable conditions on 14 April 1980.  The ADRB did not deem it appropriate to change his narrative reason for discharge.

The applicant submits a copy of a 7 December 2000 VA rating decision which granted him entitlement to a 70% disability rating for PTSD effective 30 June 1997.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6a of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; an established pattern of shirking; and an established pattern of dishonorable failure to pay just.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability; he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 1-2, provided that no enlisted member may be referred for physical disability processing when action has been or will be taken to separate him or her for unfitness, except when the officer exercising general court-martial jurisdiction determines that the disability was the cause or substantial contributing cause of the misconduct, or that circumstances warrant physical disability processing in lieu of administrative processing.  A copy of the signed decision of the general court-martial authority directing physical disability processing will be included with the records.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, and applicable law and regulations it is concluded:

1.  In the absence of evidence that at the time of the discharge the applicant was so impaired by mental, emotional, psychological or psychiatric problems as to be unable to tell right from wrong and adhere to the right, the diagnosis of PTSD, 30 years after his discharge, does not demonstrate an error or injustice in the discharge.

2.  Although the term shirking was not specifically used, the description of the applicant's attitude and expressions of intent to continue to avoid his duties and military obligations describes shirking.  

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_RVO___  __SK____  __HBO__  DENY APPLICATION

	Carl W. S. Chun
	Director, Army Board for Correction
	of Military Records

INDEX

CASE ID	AR2002071329	
SUFFIX		
RECON		
DATE BOARDED	20020902	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.01	
2.	110.02	
3.		
4.		
5.		
6.