RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  24 February 2004
	DOCKET NUMBER:   AR2003090845

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Lawrence Foster		Member	
	Ms. Margaret V. Thompson		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 reconsideration of his earlier request to the Army Board for Correction of Military Records (ABCMR) to upgrade his dishonorable discharge to general.  

2.  The applicant states that his first period of service from 15 August 1958 to 17 August 1961 was honorable.  However, he would like his second period of service, which was dishonorable, upgraded to general under honorable conditions.  He filed for a service connected disability claim for an injury sustained during his first enlistment.  While he was on temporary duty, he injured his lower back handling a heavy load.  He opposed the Vietnam War and was court-martialed in Vietnam during his second enlistment.  He was recently advised to request an upgrade of his dishonorable discharge before his claim could be considered.  He also states that documents provided from the Veterans Administration (VA) stated that he developed a back pain in 1960 but did not report it, that he was treated for a few days with relief, and that there was no evidence of a hernia. 

3.  The applicant provides copies of: his DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States); two DD Forms 214 (Report of Transfer or Discharge); a Supplemental Statement from the VA; a letter from the VA, dated 28 March 1977; and a Standard Form 10 (Notice of Change in Health Benefits Enrollment). 

4.  The applicant provides an attachment to his DD Form 293 explaining and reiterating the circumstances pertaining to his discharge. 

CONSIDERATION OF EVIDENCE: 

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC73-04003A, on 11 July 1979.  In this document, request for an upgrade of the applicant's discharge was denied.

2.  The Board originally concluded that the applicant’s record of trial appeared to contain no evidence of prejudicial error or injustice and that he understood what he was doing when he disobeyed the order and was ready to accept the consequences of his decision.  There was no evidence that the order was unlawful.  The documents submitted concerning the long-term affects of 

his dishonorable discharge also indicated that he lost his job due to mis-representation, not because of the discharge itself.  His conviction by general court-martial and eventual dishonorable discharge were proper.  The Board also concluded that there appeared to be no basis for correction of his records as requested. 

3.  The applicant’s military records show he entered active duty on 15 August 1958, as a light weapons infantryman.  

4.   Charges were preferred against the applicant on 7 December 1959, for being absent without leave (AWOL) from 27 to 29 November 1959 (3 days).

5.  He continued to serve until he was released from active duty on 17 August 1961.  He was transferred to the Army Reserve and served until honorably discharged on 6 April 1965.  

6.  After a break in service, he reenlisted on 29 October 1965.  He served in Vietnam from 15 September to 21 November 1966. 

7.  He was convicted by a general court-martial on 12 January 1967, of disobeying a lawful command from his superior officer.  His sentence consisted of a forfeiture of all pay and allowances, reduction to the pay grade E-1, confinement at hard labor for 2 years, and a dishonorable discharge.  His sentence was approved on 3 February 1967.

8.  His DA Form 20 shows he was confined from 21 November 1966 to 5 September 1967 (289 days). 

9.  On 17 May 1967, the United States Army Judiciary Board of Review affirmed the findings and sentence as provided by the convening authority.

10.  On 5 September 1967, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a dishonorable discharge.  He had served 4 years and 22 days creditable service and had 289 days of lost time due to confinement and AWOL.

11.  The applicant applied to the Army Discharge Review Board (ADRB) on 28 April 2003.  However, his case was ineligible for review by the ADRB due to his conviction by a general court-martial. 

12.  The applicant's medical records are unavailable for review by this Board.

13.  The applicant provided a copy of a letter from the VA, dated 28 March 1977 which stated that there was no evidence of a hernia.

14.  The applicant provided a copy of a Notice of Change in Health Benefits Enrollment, dated 12 November 1980.  This documents indicates that he resigned from his Federal Civil Service job.   

15.  The applicant provided a copy his Supplemental Statement from VA, dated 22 April 2003.  It stated that the applicant developed a back sprain in 1960 but apparently did not report it.  The additional evidence received did not show that a chronic back disability was incurred during his period of honorable service or the degenerative joint disease of lumbosacral spine was manifested to a disabling degree to 10 percent or more within one year of discharge from a period of honorable active service.  His claim for a back condition remained denied.  

16.  Army Regulation 635-204, in effect, at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 1(a) of the regulation provided, in pertinent part, that an enlisted person would be dishonorably discharged pursuant only to an approved sentence of a general court-martial imposing a dishonorable discharge.  The appellate review must be completed and the affirmed sentences ordered duly executed.

17.  VA Pamphlet 80-03-1 (Federal Benefits for Veterans and Dependents) describes the variety of Federal benefits available to veterans and their dependents.  Eligibility for most benefits is based upon discharge from active military service under other than dishonorable conditions.  Honorable and general discharges qualify a veteran for most VA benefits.  Dishonorable and bad conduct discharges issued by general court-martial may bar VA benefits. 

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulation.

2.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___ro___  ___lf___  __mt____  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 to amend the decision of the ABCMR set forth in Docket Number AC73-04003A, dated 11 July 1979.

		____Raymond V. O’Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2003090845	
SUFFIX		
RECON		
DATE BOARDED	20040224	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19670905	
DISCHARGE AUTHORITY	AR 635-204	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	360	
2.		
3.		
4.		
5.		
6.