RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            FEBRUARY 12, 2004                  
	DOCKET NUMBER:   AR2003090205

	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	
	Ms. Deyon D. Battle		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Robert J. Osborn		Member	
	Mr. Lester Echols		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, in effect, that the Board affirm the upgrade of his discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP).

2.  The applicant states that he should have received nonjudicial punishment (NJP) instead of receiving the discharge that he got.  He states that he was unknowingly suffering from Post Traumatic Stress Disorder (PTSD) when he was in the Army and that he is currently receiving therapy for PTSD.  He further states that he believes that he should have been medically discharged due to the injuries that he received while he was in Vietnam.  He states that he suffered multiple wounds to his face, neck, arms, right leg and left shoulder, which resulted in his being placed on a physical profile.  He goes to state that he received no mental health support at the time for his trauma and that if he had not been so severely injured and unable to cope with his limitations at the time, he might have made a career in the Army.

3.  The applicant provides a letter from the Readjustment Counseling Specialist of the United States Department of Veterans Affairs, Oakland Vet Center, dated 1 January 2003, recommending that his discharge be upgraded to an honorable discharge; a letter from an acquaintance dated 4 January 2002; and a letter from his church pastor attesting to his good post-service conduct.

CONSIDERATION OF EVIDENCE: 

1.  On 2 November 1966, he enlisted in the Army in Houston, Texas, for 3 years, in the pay grade of E-1 and he successfully completed his training as an infantryman.  On 2 March 1967, he was promoted to the pay grade of E-2 and he was transferred to Fort Campbell, Kentucky on 19 April 1967.

2.  On 20 June 1967, NJP was imposed against the applicant for willfully disobeying a lawful order.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

3.  The applicant was promoted to the pay grade of E-3 on 5 July 1967.  

4.  On 19 August 1967, NJP was imposed him for being disrespectful in language towards his superior noncommissioned officer.  His punishment consisted of a reduction in pay grade, restriction and extra duty.

5.  On 29 August 1967, the applicant had NJP imposed against him for breaking restriction.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

6.  The applicant was convicted by a summary court-martial on 31 August 1967, of striking another Soldier.  He was sentenced to a reduction in pay grade, hard labor without confinement and a forfeiture of pay.

7.  On 20 October 1967, he had NJP imposed against for being drunk and disorderly in a public place.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

8.  He was transferred to Vietnam on 29 November 1967.

9.  On 27 January 1968, NJP was imposed against the applicant for failure to obey a lawful order.  His punishment consisted of a reduction in pay grade, an oral reprimand and a forfeiture of pay.

10.  The applicant again had NJP imposed against him for being AWOL from 16 May until 3 June 1968.  His punishment consisted of a forfeiture of pay.

11.  On 29 August 1969, the applicant was convicted pursuant to his pleas, by a general court-martial of being AWOL from 1 February until 10 February 1969, from 3 March until 31 March 1969 and from 31 March until 27 May 1969; escaping from custody; committing assault on another soldier; failure to go to his appointed place of duty; and failure to obey a lawful order.  He was sentenced to a Bad Conduct Discharge (BCD), confinement at hard labor for 1 year, a reduction to the pay grade of E-1 and a forfeiture of all pay and allowances.  

12.  The convening authority approved the sentence as adjudged and on 15 October 1969, in a decision made by The United States Army Court of Military Review, on 9 April 1970, his sentence to confinement at hard labor for 1 year and a BCD was modified to confinement at hard labor for 7 months and restoration to active duty.  Accordingly, on 24 April 1970, the applicant was released from confinement and restored to active duty.  Prior to his release from confinement, he petitioned the United States Court of Military Appeals for a grant of review and that portion of his sentence adjudging total forfeitures was modified by the United States Army Court of Military Review to provide for forfeiture of $50.00 pay per month for 7 months (forfeiture to apply to pay becoming due on and after 15 October 1969).

13.  On 17 July 1970, the United States Court of Military Appeals set aside and dismissed the charge and specification pertaining to the assault on another soldier and affirmed that portion of the decision as provided for confinement at hard labor for 7 months, forfeiture of $50.00 a month for 7 months and a reduction to the pay grade of E-1.

14.  On 7 January 1971, the applicant was notified that charges were pending against him for being AWOL from 23 May until 28 July 1970 and from 26 August until 19 November 1970.  He acknowledged receipt of the notification and after consulting with counsel, he waived his rights and he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.

15.  The appropriate authority approved the recommendation for discharge on 4 February 1971.  Accordingly, on 26 February 1971, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  He had completed 2 years, 9 months and 28 days of total active service and he had approximately 498 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

16.  On 17 June 1977, the Army Discharge Review Board (ADRB) dispatched a letter to the applicant informing him that his discharge had been upgraded to a general discharge under the SDRP.  The Report of Separation (DD Form 214) that he was furnished at the time of his discharge was voided and he was furnished a new DD Form 214, which reflects the character of his service as under honorable conditions.  

17.  On 1 September 1978, the ADRB re-reviewed the applicant's general discharge under the then new uniform standards for discharge review and voted unanimously not to affirm the applicant's discharge.  In a letter dated 24 October 1978, from the ADRB, he was informed that under the new law, his discharge might impact his ability to acquire benefits under the Veterans Administration.

18.  On 7 August 1996, this Board corrected the applicant’s records to show the award of the Purple Heart and to show his appropriate date of birth.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

20.  On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between
4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

21.  In October 1978, Public Law 95-126 was enacted.  This legislation required the service Departments to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

DISCUSSION AND CONCLUSIONS:

1.  The Board concurs with the findings and conclusions of the ADRB in its decision not to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards.  The applicant’s administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  

2.  The evidence of record clearly shows that the applicant had an extensive disciplinary record, that he failed to respond to numerous counseling sessions and attempts at rehabilitation and that he exhibited a total disregard for military authorities.  Notwithstanding the original determination by the ADRB, the official record shows that his service was not satisfactory and, that his general discharge should not be affirmed.  

3.  The applicant’s contentions regarding his treatment for PTSD have been noted.  The letter from the Veterans Affairs Readjustment Counseling Specialist has also been noted.  However, a review of the available records fails to show that he was suffering from PTSD while he was in the Army.  He enlisted in the Army on 2 November 1966 and 7 months later he began his acts of misconduct that resulted in his having NJP imposed against him on six separate occasions, one summary court-martial and one general court-martial.  Even after being convicted by a general court-martial and sentenced to a BCD, portions of his sentence were set aside.  He was restored to duty and yet, he continued to go AWOL. 

4.  It appears that he was provided every opportunity to successfully complete his service obligation and he opted not to do so.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  Although he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

5.  The applicant’s post-service conduct as well as his service in Vietnam have been considered and noted.  However, these factors do not provide a sufficient basis for granting relief when considering his overall record of undistinguished service.  

6.  In order to justify correction of a military record the applicant must show 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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

rjo_  ____  le__   ___  jhl   _____  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.

		__  _Joann H. Langston___
		        CHAIRPERSON

INDEX

CASE ID	AR2003090205	
SUFFIX		
RECON		
DATE BOARDED	20040212	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19710226	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689/CHAPTER 10	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  708	144.7100.0000/CONDUCT TRIABLE BY CM	
2.  713	144.7110.0000/AWOL	
3.  718	144.7500.0000/DOLO	
4.		
5.		
6.