MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            10 September 2002
	DOCKET NUMBER:   AR2002072164

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr		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 undesirable discharge be upgraded to a general discharge.

APPLICANT STATES:  That he was informed at his court-martial that his discharge would be upgraded after a certain number of years and it has not been done.  He further states that his trouble began after his service in Vietnam and being in an area where Agent Orange was being sprayed.  He continues by stating that he believes the government should be responsible for the long-term effect that the chemical has had on his lungs; however, the Veterans Hospital will not treat him because of his discharge.  

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

He enlisted in Detroit, Michigan, on 27 March 1967, for a period of 3 years and training as a combat engineer.  He successfully completed his training and was transferred to Germany on 14 August 1967, for duty as a pioneer.  He was advanced to the pay grade of E-3 on 5 October 1967.

He was honorably discharged on 26 November 1967 and reenlisted on 27 November 1967 for a period of 3 years.  He volunteered for and was transferred to Vietnam on 12 February 1968.

On 20 April 1968, nonjudicial punishment (NJP) was imposed against him for failure to obey a lawful order to wear his steel helmet.  His punishment consisted of a forfeiture of pay.

On 23 April 1968, NJP was imposed against him for sleeping on guard duty while posted as a sentinel on the security perimeter.  His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay.

He was convicted by a special court-martial on 14 August 1968, of sleeping on his guard post.  He was sentenced to be reduced to the pay grade of E-1, a forfeiture of pay and confinement at hard labor for 3 months (suspended for 3 months).

On 27 October 1968, NJP was imposed against him for operating a vehicle in a reckless manner.  His punishment consisted of a forfeiture of pay.

He departed Vietnam on 6 February 1969 and was transferred to Fort Sill, Oklahoma.  

On 9 May 1969, NJP was imposed against him for wrongfully appearing at the county courthouse in an improper uniform.  His punishment consisted of an oral admonition, restriction and extra duty.

On 18 June 1969, NJP was imposed against him for disobeying a lawful order from a superior noncommissioned officer and for failure to go to his place of duty. His punishment consisted of a forfeiture of pay and restriction (suspended for 30 days).  

On 21 August 1969, NJP was imposed against him for failure to obey a lawful order from the battalion commander and for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay (suspended for 30 days) and restriction.  The suspended punishment was vacated on 12 September 1969.

He was convicted by a special court-martial on 26 September 1969, of disobeying a lawful order from his commanding officer.  He was sentenced to confinement at hard labor for 3 months, reduction to the pay grade of E-1 and a forfeiture of pay.

On 3 December 1969, NJP was imposed against him for disobeying a lawful order from a superior noncommissioned officer and being disrespectful in language towards a noncommissioned officer.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 26 January 1970, the applicant’s commander initiated action to separate him from the service under the provisions of Army Regulation 635-212 for unfitness, based on habits and traits of character manifested by frequent involvement in incidents of a discreditable nature with military authorities and an established pattern of shirking.  He cited as the basis for his recommendation, the applicant’s disciplinary record, his failure to respond to repeated counseling sessions as well as rehabilitative reassignments to different jobs.  He also indicated that the applicant was irresponsible, immature, apathetic, resents authority and was a disgrace to the uniform.

His battalion commander endorsed the recommendation and stated that the applicant was an incorrigible offender with no desire for rehabilitation, could not be trusted with any responsibility, to include his own appearance and was awaiting trial by court-martial for disobedience and being absent without leave (AWOL).

He was convicted by a summary court-martial on 20 February 1970, of two specifications of disobeying a lawful order from a superior noncommissioned officer and of being AWOL from 4 February to 15 February 1970.  He was sentenced to confinement for 1 month and a forfeiture of pay.

On 4 March 1970, after consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.  At that time he also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life with an undesirable discharge and that he might be ineligible for all benefits under Federal and State laws.

The appropriate authority (a major general) approved the recommendation for discharge on 23 March 1970 and directed that the applicant be furnished an Undesirable Discharge Certificate.

Accordingly, on 26 March 1970, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-212 for unfitness due to his frequent involvement in incidents of a discreditable nature with military and civil authorities.  He had served 2 years, 10 months and 5 days of total active service and had 55 days of lost time due to AWOL and confinement.

There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided, in pertinent part, that members who were involved in frequent incidents of a discreditable nature with civil and/or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate and there has never been any provisions for an automatic upgrade of such a discharge.

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

1.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.

2.  Accordingly, the type of discharge and the reasons therefore were appropriate considering the facts of the case and his otherwise undistinguished record of service.

3.  The applicant’s contentions have been noted by the Board; however, they are not supported by either the evidence submitted with his application or the evidence of record.  The applicant was not discharged as a result of a          court-martial conviction and he acknowledged, after consulting with counsel, that he understood that he might be denied benefits as a result of an undesirable discharge, at the time he waived his rights.  

4.  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.

5.  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

___be___  __fe ____  __wb____  DENY APPLICATION

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

INDEX

CASE ID	AR2002072164	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/10	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/03/26	
DISCHARGE AUTHORITY	AR635-212	
DISCHARGE REASON	UNFIT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  583	144.5000/A51.00	
2.		
3.		
4.		
5.		
6.