MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:       

		BOARD DATE:           20 November 2003
		DOCKET NUMBER:  AR2003090277

	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. Luis Almodova		Analyst	

The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert L. Duecaster		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 undesirable discharge be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that he served his country in a very proud manner in Vietnam where he was faced daily with danger and horror.  In dealing with the very hostile situation in Vietnam and upon returning to the United States, he was faced with even more hostility and being Afro-American, his troubles were only worsened.  He tried to get help to deal with his depression, anger, and mental state of mind, but no help was available.

In support of his application, the applicant submitted a copy of his two DD Forms 214, Armed Forces of the United States Report of Transfer or Discharge.

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

The applicant enlisted in the Regular Army for a period of 3 years on 2 October 1968.  He successfully completed basic combat training at Fort Ord, California, and was assigned to Fort Gordon, Georgia, to undergo advanced individual training.  On completion of his training, he was awarded the military occupational specialty (MOS) 11B, Light Weapons Infantryman.

The applicant was assigned to Germany as a first duty station.  He was assigned to B Battery, 2nd Battalion, 6th Field Artillery, 3rd Armored Division, on 14 April 1969.

The applicant was promoted to Specialist Four, E-4, on 5 June 1969.  This would be the highest rank and pay grade that he would hold during his military service.  The record contains no documented acts of valor, achievement, or service warranting special recognition.

On 25 June 1969, the applicant received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for carrying a concealed weapon on 22 June 1969.  The imposed punishment was a reduction to the rank and pay grade, Private First Class, E-3, forfeiture of $50.00 per month for two months.  The reduction and the forfeiture for the second month were suspended until 22 October 1969 at which time it would be automatically remitted unless sooner vacated by competent authority.  The applicant did not appeal the punishment.

The applicant received nonjudicial punishment under Article 15 of the UCMJ on 7 July 1969.  Although he was found guilty, the commander did not impose any punishment.  Instead, he vacated the suspension of reduction to Private First Class, E-3, that had been imposed on him in the nonjudicial punishment that was administered on 25 June 1969.

On 10 July 1969, the applicant received nonjudicial punishment under Article 15 of the UCMJ for striking a superior noncommissioned officer on 4 July 1969.  The imposed punishment was a reduction to the rank and pay grade Private, E-2, to perform extra duty for 30 days, and restriction to the battery, mess hall, chapel, dispensary, and place of duty for 30 days.  The reduction to Private, E-2, and 15 days of the extra duty and restriction were suspended until 10 September 1969 at which time they would be automatically remitted unless sooner vacated by competent authority.  The applicant did not appeal the punishment.

On 18 March 1970, the applicant was convicted by a summary court-martial of failing to go at the time prescribed to his appointed place of duty, remedial driver training class on 24 February 1970, and the physical combat proficiency test on 26 February 1970. He was sentenced to reduction to the rank and pay grade Private, E-1, and to perform hard labor without confinement for 45 days.  The sentence was approved and ordered executed on 21 March 1970.

On 8 May 1970, the applicant received nonjudicial punishment under Article 15 of the UCMJ for absenting himself from his unit at 0030 hours, on 6 April 1970 and remaining absent until 0320 hours on 6 April 1970, and for failing to go at the time prescribed to his appointed place of duty, reveille formation on 7 April 1970.  The imposed punishment was extra duty for 15 days.  The applicant did not appeal the imposed punishment.

On 26 June 1970, the applicant departed from Germany on a permanent change of station en route to an assignment in Vietnam.  He arrived in Vietnam on 13 August 1970 and was assigned to B Battery, 1st Battalion, 39th Artillery Regiment, for duty as a cannoneer.

On 21 January 1971, the applicant was convicted by a special court-martial of three specifications of using provoking words towards a superior noncommissioned officer on 23 October 1970, and one specification of communicating a threat to a superior noncommissioned officer on 23 October 1970.  He was sentenced to reduction to the rank and pay grade, Private, E-1, and to be confined at hard labor for a period of 80 days.  The sentence was approved and ordered executed on 23 January 1971.

On 23 January 1971, the applicant was reassigned for rehabilitative purposes to C Battery, 1st Battalion, 39th Artillery.

On 12 April 1971, the applicant was referred to and was evaluated by a trained psychiatrist.  The evaluation was requested pending administrative separation 

under Army Regulation (AR) 635-212.  In the evaluation report, the psychiatrist stated that the applicant was oriented as to time and place.  He had a good fund of knowledge and a good recent past memory.  His associations were goal directed with thought content autistic.  His mood was slightly depressed.  The psychiatrist's impressions were that the applicant had a chronic moderate character disorder of passive aggressive type.  He was under minimal stress and had a moderate disposition.  The applicant was cleared for administrative action as deemed necessary by command.  He was found mentally responsible and knew right from wrong.  The psychiatrist opined that further rehabilitative efforts probably would not be effective and recommended that the applicant be processed for discharge under AR 635-212.

On 28 March 1971, his commander advised the applicant that he was recommending that he [the applicant] be discharged from the Army before the expiration of his term of service under the provisions of AR 635-212, for unfitness.

On 6 April 1971, the applicant's commanding officer recommended that the applicant be discharged from the Army prior to the expiration of his current period of service under the provisions of AR 635-212, by reason of unfitness.  Elimination was recommended because of his repeated infractions of military rules and regulations with apparent failure to profit from military discipline.  Various members of the applicant's chain of command had formally counseled him on 3, 10, and 13 October 1970; 23 and 24 January 1971; and 19 March 1971.  The members of the chain of command to counsel with the applicant included his group commander, a colonel.  Command concluded that there were no other grounds for disposing of the applicant due to his apparent deliberate shirking of duty and continued record of Article 15 and court-martial offenses.  The applicant was described as "a discredit to the Army."  The commander concluded his recommendation by adding, "It is deemed highly unlikely that he will change his attitude or develop sufficiently to become a satisfactory soldier."

On 17 April 1971, counsel advised the applicant that proceedings to discharge him from the Army, under the provisions of AR 635-212, for unfitness, were being contemplated.  The applicant acknowledged the contemplated action on the same date and waived consideration of his case by and a personal appearance before a board of officers.  The applicant elected not to make a statement but acknowledged that he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued him.  The applicant also understood that, as a result of issuance of an undesirable discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State laws.

The applicant's chain of command was unanimous in recommending approval of the action and in recommending that the applicant be discharged with an undesirable discharge.

On 9 May 1971, the appropriate authority, a lieutenant general, approved the applicant's discharge and directed that an undesirable discharge be issued.

The applicant was discharged on 16 May 1971, with an undesirable discharge, with his service characterized as, under other than honorable conditions, in the rank and pay grade, Private, E-1, after completing 2 years, 2 months, and 6 days creditable active military service.  On the date of his discharge, the applicant had accrued 169 days of lost time due to confinement.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 9 February 1982.  In his application to that board, the applicant contended that he was on drugs and he did not receive proper medical treatment.  He felt that he should have been put in a rehabilitation program rather than to be discharged.  The ADRB found no evidence in the record to substantiate that drugs caused his performance to deteriorate to an unsatisfactory state and rejected his contention.  On 23 November 1982, the ADRB, by unanimous vote, concluded that the applicant's separation was proper and denied his application.

AR 635-212, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a 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.

AR 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

Paragraph 3-7, in the above cited regulation, also provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable 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.  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 the above requirement.

2.  The applicant’s discharge proceedings appear to have been conducted in accordance with law and regulations applicable at the time of his separation.

3.  The Board noted that a psychiatrist diagnosed the applicant.  The psychiatrist's impressions were that the applicant had a chronic moderate character disorder of passive aggressive type.  He was under minimal stress and had a moderate disposition.  He was found mentally responsible and knew right from wrong.  The psychiatrist opined that further rehabilitative efforts probably would not be effective and cleared the applicant for administrative action as deemed necessary by command.

4.  The Board carefully reviewed the applicant’s record of service.  The character of the discharge is commensurate with the applicant's overall record of military service.

5.  The record shows that during his service time, the applicant accepted nonjudicial punishment on four occasions and was convicted by a summary and a special court-martial.  In view of these instances of misconduct, an undesirable discharge does not appear to be unduly harsh.

6.  The applicant's discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  Through his misconduct, the applicant diminished the quality of his service below that meriting an upgrade of his undesirable discharge to either an general (under honorable) or a fully honorable discharge.

7.  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____  __lds ___  __rld____  DENY APPLICATION

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

INDEX

CASE ID	AR2003090277	
SUFFIX		
RECON		
DATE BOARDED	2003/11/20	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	16 May 1971	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  360	144.0000	
2.  583	144.5000	
3.  595	144.5400	
4.		
5.		
6.