RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            27 APRIL 2004                  
	DOCKET NUMBER:   AR2003095009

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

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred Eichorn		Chairperson	
	Mr. Patrick H. McGann, Jr.		Member	
	Ms. Marla J. N. Troup		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

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

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his discharge under conditions other than honorable be upgraded to general (under honorable conditions). 

2.  The applicant states that he was wrong by being AWOL (absent without leave).  He had difficulty coping with the service and finishing his tour.  He did request assignment to another duty station, but his request was denied.  He was not given the benefit of the doubt by his superiors. 

3.  He states that when he returned from Vietnam he went through a period of about 2 or 3 years when he could not sleep, waking in a cold sweat, and dreaming about shooting at people and being shot at.  This changed but did not completely go away.  He is now 49 years old, and this is now recurring.  He does not know whether he can deal with this feeling again.  He has lost every job because of these problems.  He is not able to work.  He can't hold a steady job.  He has gone through three marriages and several relationships.  No woman wants a man that can't hold a job and has several mood swings.  He has a feeling of worthlessness since he was discharged from the Army.  He was stationed at Fort Campbell, Kentucky, about an hour from his home.  He was AWOL on four occasions.  He does not understand why he was classified as undesirable for being AWOL for a total of 18 days in 2 1/2 years, when others, deserters and draft dodgers, were receiving better discharges.  They were granted amnesty.  He received an undesirable discharge.      

4.  The applicant provides a letter of support from his sister, his cousin, and a childhood friend, a member of the Salvation Army.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel requests that the Board consider the applicant's statement along with the character/reference letters from his sister, cousin, and the Salvation Army member.

2.  Counsel states that the applicant is working and has had no trouble with the law since his military service.  Counsel states that the impetuosity of his youth at that time and all contributing factors should be considered, and that although his infractions did constitute military misconduct, the applicant is not a criminal.  All reasonable doubt should be resolved in favor of the applicant and action be taken to upgrade his discharge. 

3.  Counsel provides no evidence.

CONSIDERATION OF EVIDENCE: 

1.  The applicant enlisted in the Army for three years on 4 September 1970, trained as an infantryman, and completed an unattended ground sensor course at Fort Huachuca in February 1971.  In March 1971 he was assigned with his unit to Vietnam.  He was promoted to pay grade E-4 in July 1971.  He returned to the United States in August 1971 and was assigned to Fort Campbell.  

2.  Beginning in September 1971 the applicant's conduct resulted in him receiving nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on 11 separate occasions – for AWOL, failure to go this his place of duty, failure to obey a lawful general regulation, willfully disobeying a lawful order, breaking restriction, and assault.  He committed these offenses while assigned to three different units, Headquarters and Headquarter Company, 3d Brigade, 101st Airborne Division; Headquarters and Headquarters Company, 173d Airborne Brigade; and Company A, 1st Battalion, 501st Infantry.     

3.  On 19 July 1972, before a summary court-martial which convened at Fort Campbell, the applicant was arraigned, tried, and pled guilty to two counts of disobeying a lawful order.

4.  A 25 January 1973 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1. In the report of medical history that he furnished for the examination, the applicant stated that he was in good health.  

5.  A 26 January 1973 report of mental status evaluation shows that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He met the medical standards for retention in the Army.

6.  On 30 January 1973, before a summary court-martial which convened at Fort Campbell, the applicant was arraigned, tried, and found guilty of failure to go to his place of duty and for AWOL.

7.  On 2 February 1973 the applicant's commanding officer recommended that the applicant be discharged for unfitness under the provisions of Army Regulation 635-200, chapter 13.  He stated that his recommendation was based on the applicant's shirking and frequent incidents of a discreditable nature, and that this conduct had been similar to that described by his preceding company commander who had the applicant transferred for rehabilitation.  He stated that the applicant's appearance was disgraceful, that he had gone on sick call repeatedly to avoid work, and had violated the provisions of the UCMJ so many times that it was impossible to punish him for everything that he had done.  He stated that repeated efforts to rehabilitate him had failed.  He stated that the applicant lied about a sick call appointment, failed to appear at a formation, and falsified a legal document resulting in him receiving an unwarranted medical profile.  He stated that the applicant had gone on sick call on numerous occasions without permission.  He stated that the applicant's conduct, performance and appearance were totally unsatisfactory.  In all this, the applicant's commanding officer was supported by the applicant's first sergeant, platoon leader, platoon sergeant, squad leader, previous company commander, and previous first sergeant.  

8.  On 5 February 1973 the applicant consulted with counsel, and stated that he had been advised on the basis for the contemplated action.  He requested consideration of his case by a board of officers.

9.  A board of officers was appointed to hear the applicant's case.  It convened on 2 March 1973.  The applicant was present throughout the proceedings and was represented by counsel.  The board reviewed the evidence submitted and heard testimony.  The applicant testified in his own behalf.  The board found that the applicant was unfit for further service due to his frequent incidents of misconduct.  It found that the applicant's attitude and performance were a detriment to the service as well at to his unit's morale and discipline and that his further rehabilitation was not deemed possible.  The board recommended that the applicant be separated because of unfitness and that he be furnished an undesirable discharge.

10.  On 14 March 1973 the separation authority approved the board's recommendation and directed that the applicant be furnished an Undesirable Discharge Certificate.  The applicant was discharged on 21 March 1973.

11.  On 23 September 1980, in an unanimous opinion, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.    

12.   Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, then in effect, establishes policy and prescribes procedures for separating members for unfitness, to include frequent incidents of a discreditable nature with civil or military authorities.  Action will be taken to separate a member when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.
  
DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the applicant's contentions, the evidence clearly shows that he was given the benefit of the doubt by personnel in his chain of command.  He was afforded every opportunity to correct his behavior, to include rehabilitative transfers.  It would appear, in fact, that members of his chain of command put up with the applicant longer than necessary, and that his conduct should have warranted earlier discharge proceedings than that given.  

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  In view of the applicant's numerous acts of indiscipline, it does not appear that his undesirable discharge was too severe.
The character of the discharge is commensurate with the applicant's overall record of military service.

3.  The applicant's employment problems and domestic issues are noted, as are the letters of support that the applicant provides with his request.  None of these factors, however, either individually or in sum, warrant the relief requested.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__FE____  __PHM__  _MJNT__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		_____Fred Eichorn________
		        CHAIRPERSON

INDEX

CASE ID	AR2003095009	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040427	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.