MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            30 September 2003
	DOCKET NUMBER:   AR2003088170

	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	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Margaret V. Thompson		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 an honorable or a general discharge.

APPLICANT STATES:  That in reviewing his military records it appears that he did nothing good for his country.  He states that he had a few article 15s and maybe his prior service background was not what this Board wanted; however, he did his best and he knows that he did some good for his country.  He goes on to state that he can remember many times while he was in Vietnam that he saved or protected a life as he was in the field for most of his tour and as much as he hated it, he never complained.  He continues by stating that he was often in combat day and night; however, his records do not reflect the hardships that he had to overcome.  He states that he continues to have a host of problems and that his mind was all “messed up” and that he was never provided an opportunity to rehabilitate himself and that he was incarcerated for crimes that he did not commit.  He states that it seemed like the Army gave up on him although he never gave up on the Army and that he has never worried the Army about what he thought as he loved what the military stood for.

The applicant also submitted a statement to this Board indicating that throughout his training, he believed that he had to be tough and that’s how he received his first article 15.  He states that his behavior was explosive; however, he was young and he now knows that he was wrong.  He refers to several incidents in which he received article 15s for being late either returning to or reporting to his assigned unit and he admits that his behavior was somewhat out of order.  He also refers to an incident in which he states that he purchased marijuana believing that he was helping the family of an overseas boy.  He concludes by stating that he tried to be a model soldier and he does not believe that he should have received an undesirable discharge.

In support of his application, he submits a letter from the criminal court of Shelby County, Tennessee, dated 18 February 2003; a copy of a Certificate of Psychiatric Evaluation dated 11 June 1970; a copy of his arrest record from the Bureau of Identification, Detective Division in Memphis, Tennessee.

COUNSEL CONTENDS:  Counsel requests that the Board resolve any doubt in favor of the applicant.

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

On 13 July 1967, he enlisted in the Army in Memphis, Tennessee, for 3 years in the pay grade of E-1.  

Nonjudicial punishment (NJP) was imposed against the applicant on 31 July 1967, for wrongfully engaging in a fistfight in the mess hall.  His punishment consisted of an oral reprimand, a forfeiture of pay and extra duty.

On 3 October 1967, NJP was imposed against him for failure to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay.

On 14 December 1967, NJP was imposed against the applicant for being absent without leave (AWOL) from 4 December until 11 December 1967.  His punishment consisted of a forfeiture of pay and restriction.

He went on to complete his training as a radio telephone operator and on 16 December 1967, he was transferred to Vietnam.

The applicant was convicted by a special court-martial on 24 October 1968, of wrongfully having in his possession, marijuana.  He was sentenced to confinement at hard labor for 6 months, a reduction in pay grade and a forfeiture of pay.

A review of the record shows that the applicant was also AWOL from 15 January to 5 June 1969; 28 July until 12 September 1969; and 5 October 1969 until 15 May 1970.  Further review of the applicant’s record shows that his conduct and efficiency ratings were unsatisfactory.

The facts and circumstances pertaining to the applicant's discharge are not on file.  The Report of Transfer or Discharge (DD Form 214) indicates that the applicant was discharged on 23 July 1970, under the provisions of Army Regulation 635-212, for unfitness, based on frequent incidents of a discreditable nature with military or civil authorities.  He had completed 1 year, 9 months and 21 days of total active service and he had 445 days of lost time due to AWOL and confinement.  He was issued an Undesirable Discharge Certificate.  

There is no evidence of record that shows that the applicant 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.  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.  It appears that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
2.  The Board has considered contentions made by the applicant and his counsel.  However, the applicant’s contentions are unsupported by the evidence in the available record.  The applicant was AWOL on four separate occasions.  He had NJP imposed against him twice and he was convicted by a special court-martial as a result of his acts of misconduct.  

3.  He had a total of 445 days of lost time due to AWOL and confinement and considering his numerous acts of indiscipline, it does not appear that the type of discharge that he received was too severe and the character of his discharge appropriately reflects his overall record of service.

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

__mvt ___  ___mm__  _rjw ____  DENY APPLICATION

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

INDEX

CASE ID	AR2003088170	
SUFFIX		
RECON		
DATE BOARDED	2003/09/30	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/07/23	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	583	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  592	144.5200	
2.  594	144.5300	
3.		
4.		
5.		
6.