MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 July 2003
	DOCKET NUMBER:   AR2003086693

	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:

	Ms. Joann H. Langston		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. John T. Meixell		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:  In effect, that his discharge, as upgraded to general by the Army Discharge Review Board (ADRB), be affirmed by the Board.

APPLICANT STATES:  In effect, that his undesirable discharge was upgraded to a general discharge under the Department of Defense Special Discharge Review Program (SDRP); however, when he applied for benefits, he was informed that his discharge is still considered as under other than honorable conditions.

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

He was inducted in Beckley, West Virginia, on 12 February 1969.  He successfully completed his training as a light weapons infantryman and received orders to Vietnam, with a report date to the overseas replacement detachment at Oakland Army Base, California, of 15 July 1969.

He failed to report as ordered and was reported as being absent without leave (AWOL).  He remained absent until he was returned to military control at Fort Knox, Kentucky, on 3 August 1969.  He again departed AWOL on 17 August 1969 and remained absent until he was again returned to military control at Fort Knox on 3 October 1969 and charges were preferred against him.

On 5 November 1969, he was convicted by a special court-martial of the AWOL offenses.  He was sentenced to confinement at hard labor for 5 months, a forfeiture of pay and reduction to the pay grade of E-1. 

The applicant again went AWOL on 28 November and remained absent until he was returned to military control on 18 December 1969.  He was convicted by a special court-martial of the AWOL charge on 16 January 1970 and was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

On 20 January 1970, the applicant's commander advised him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-212, for unfitness.  After consulting with counsel, the applicant waived his rights and declined to submit a statement in his own behalf.

The applicant also underwent a psychiatric evaluation and was deemed to be mentally responsible, able to distinguish right from wrong and to adhere to the right.

The appropriate authority (a major general) approved the recommendation for discharge on 3 February 1970 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 9 February 1970, under the provisions of Army Regulation 635-212, for unfitness. He had served 6 months and 1 day of active service and had 181 days of lost time due to AWOL and confinement.  At the time of his discharge he was advised of the procedures for applying to the ADRB for an upgrade of his discharge, which he acknowledged by his signature. 

On 15 June 1977, the ADRB reviewed the applicant's discharge under the SDRP and voted to upgrade his undesirable discharge to a general discharge.

On 21 April 1978, the ADRB dispatched a letter to the applicant informing him that while his discharge had been upgraded to a general discharge under the SDRP, the ADRB had not affirmed his discharge.  He was also informed that he could apply to that board to have his discharge affirmed in order that he may qualify for benefits administered by the Veteran Administration (VA).

On 14 July 1978, the ADRB notified the applicant that his discharge had been  re-reviewed by the ADRB as required by Public Law 95-126 and that the ADRB had determined that his discharge did not qualify for upgrading under the new uniform standards for discharge review.  Accordingly, his upgraded discharge under the SDRP was not affirmed and thus he would be ineligible for benefits administered by the VA.

Department of Defense SDRP, 5 April 1977, provided for the review of Vietnam era less than honorable discharges in the spirit of compassion.  Compelling reasons for upgrade under the primary criteria were the award of a decoration or service medal, wounded in action, satisfactory completion of a tour of duty in 
Southeast Asia, receipt of a prior honorable discharge, or completion of satisfactory service of 24 months prior to discharge.  Reasons for granting an upgrade under secondary criteria included age, aptitude, education level, alcohol/drug problem, record of good citizenship, etc.

Public Law 95-126 precluded automatic granting of some VA benefits on the basis of upgrading a discharge given under other than honorable conditions by action of the ADRB – SDRP.

Department of Defense Directive, 29 March 1978, announced uniform standards for the review of discharges or dismissals to ensure historically consistent uniformity as required by the provisions of Public Law 95-126.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.   

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.

3.  The applicant's record of undistinguished service, combined with an excessive amount of lost time and disciplinary record, does not warrant affirming his discharge as upgraded under the SDRP.

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

__jhl ____  ___rks __  ___jm___  DENY APPLICATION

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

INDEX

CASE ID	AR2003086693	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/07/17	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/02/09	
DISCHARGE AUTHORITY	AR635-212	
DISCHARGE REASON	UNFIT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  954	144.0020/A00.20	
2.		
3.		
4.		
5.		
6.