MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:       

		BOARD DATE:           7 October 2003 
		DOCKET NUMBER:  AR2003091657

	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:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Shirley L. Powell		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, the applicant believes that the record is in error or unjust due to:  a.) his service in Vietnam; b.) his young age at the time; 
c.) forfeitures of pay that he experienced; d.) reductions in rank that he experienced; and e.) the under other than honorable conditions characterization of his discharge was excessive punishment which he has had to endure for over thirty three years.

COUNSEL CONTENDS:  That the contentions made by the applicant, in conjunction with official military records, amply advance and substantially reflect the probative facts needed for equitable review.  Counsel points out that the applicant's conduct and behavior were changing and influenced, as he was involved in abuse of some form of drug.  He adds that there is no record of treatment for drug abuse or rehabilitative efforts by the command but there is an extensive record that he was disciplined, barred from reenlistment, and processed for discharge while he was in confinement.

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

The applicant enlisted in the Regular Army at age 18, on 1 November 1967.  Following completion of basic combat training at Fort Ord, California, he was reassigned to undergo advanced individual training (AIT) at Fort McClellan, Alabama.  On completion of AIT he was awarded the primary military occupational specialty (MOS) 54D, Chemical Equipment Repairman.  

On 1 March 1968, while he was at Fort McClellan, the applicant accepted nonjudicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for willfully destroying military property and for being disorderly during scheduled instruction by igniting another soldier's uniform with a cigarette lighter on 1 March 1968.  The punishment imposed was an oral reprimand, forfeiture of $20.00 and 14 days extra duty and 14 days restriction to the company area.  The applicant did not appeal the punishment.

The applicant's DA Form 20, Enlisted Qualification Record, reveals that he was promoted to Specialist Four, E-4, on 20 March 1969.  This would be the highest rank and pay grade that the applicant would hold during his Army service.

The applicant was reassigned to Fort Benning, Georgia, on 30 March 1968, to undergo airborne training.  On completion of this training, he was awarded the Basic Parachutist Badge.

On 19 June 1968, the applicant departed Fort Benning en route to Vietnam.  He arrived in Vietnam and was assigned to the 3rd Maintenance Support Company on 20 July 1968.

On completion of the applicant's normal [12 months] overseas tour of duty in Vietnam, he voluntarily extended his overseas tour for 6 months for a 30-day special leave.  His new date of eligibility for return from overseas was established at 26 February 1970.

While the applicant was in the United States on the above referenced 30-day special leave, the Sheriff's Office in San Diego, California, arrested him on 7 July 1969, for possession of alcohol by a minor.  The applicant's unit was notified by official correspondence dated 1 August 1969.

On 7 August 1969, the applicant accepted nonjudicial punishment under Article 15, of the UCMJ, for absenting himself from his unit about 0900 hours on 29 July 1969 and remaining absent until 0930 hours on the same date.  The punishment imposed was forfeiture of $38.00, two hours extra duty for 14 days and 14 days restriction to the company area, post chapel, and shop area for 14 days, and a reduction in rank and pay grade to Private First Class, E-3 (suspended for 30 days).  The applicant did not appeal the punishment.

On 16 September 1969, the applicant accepted nonjudicial punishment under Article 15, of the UCMJ, for being in Saigon, without proper justification, on 22 August 1969.  The punishment imposed was forfeiture of $38.00, two hours extra duty for 14 days and 14 days restriction to the company area, post chapel, and shop area, and a reduction in rank and pay grade to Private First Class, E-3.  The applicant appealed the punishment because he felt the punishment was too severe due to the fact that other personnel from his company had succeeded in doing the same thing with less non-judicial punishment.  He also felt that the commander was prejudiced in his punishment.  On 7 October 1969, the appeal was denied and the punishment was ordered executed as presented.

On 29 October 1969, the applicant was found guilty by a Special Court-Martial of absenting himself from his unit, without proper authority, on 19 September, and remaining absent until 29 September 1969; disobeying a lawfully given order from his superior commissioned officer to perform a specific detail on 10 October 1969, and wrongfully communicating a threat to shoot or kill the first sergeant on 9 October 1969.

The applicant was sentenced on 29 October 1969 to confinement at hard labor for five months, to a forfeiture of $75.00 per month for five months and to be reduced to the rank and pay grade, Private, E-1.

The above sentence was adjudged on 29 October 1969 but the execution of that portion of the sentence adjudging confinement at hard labor for five months was suspended until 29 March 1970.

On 1 November 1969, the suspension of the sentence to confinement at hard labor for five months was vacated and the sentence was ordered executed.  The applicant was to be confined at the US Army Vietnam Installation Stockade.

On 1 November 1969 when the applicant was being readied to be taken to the stockade, he was observed as being groggy and walking unsteadily and after a short period of time passed out.  He was taken to the 3rd Evacuation Hospital at Long Binh where he was found to have overdosed on drugs.  A line of duty investigation was initiated.  The applicant declined to make a statement.  The line of duty investigation found that intentional misconduct was the proximate cause of the overdose and that the applicant was mentally sound when the overdose occurred.  A finding of, "Not in the line of duty – due to own misconduct," was made.  The line of duty investigation was approved, on 16 September 1970, by order of the Secretary of the Army.

On 26 November 1969, a recommendation was made to bar the applicant from reenlistment.  The bar to reenlistment was recommended because of habits and traits of character manifested by repeated commission of court-martial offenses.  The applicant was advised that the recommendation to bar him from reenlistment was being made and he was given the opportunity to make a statement in his own behalf.  The applicant declined to make a statement.  The bar to reenlistment was approved on 28 November 1969.

On 18 September 1969, the 1st Infantry Division Psychiatrist gave the applicant a psychiatric evaluation.  The examiner diagnosed the applicant with an immature personality.  The evaluation revealed a fully oriented, alert, intelligent, individual.  There was no evidence of psychosis, neurosis, or other gross emotional impairments.  The applicant met retention standards of Army Regulation 
(AR) 40-501 and there was no psychiatric disease or defect that would warrant disposition through medical channels.  The applicant was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  Based on the evaluation alone, the psychiatrist found it difficult to make a statement regarding the rehabilitative potential of the individual.  The psychiatrist cleared the applicant for any administrative and/or judicial actions deemed appropriate by command.

On 4 November 1969, the division psychiatrist prepared an addendum to his psychiatric evaluation report dated 18 September 1969.  In this addendum the psychiatrist stated that, "rehabilitative efforts have not helped the applicant.  He is gradually losing control of his impulses to the point of being a threat to the safety of others.  It is recommended that he be separated from the military under the provisions of AR 635-212."

On 2 December 1969, the applicant was psychiatrically evaluated at the US Army Vietnam Stockade.  The applicant met retention standards of AR 40-501.  The applicant was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  The conditions and problems presented by the individual were not amenable to hospitalization, treatment, transfer, disciplinary action, training or reclassification to another type of duty within the military.  The psychiatrist opined that it was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful.  The psychiatrist recommended that the applicant be administratively separated from the military under the provisions of AR 635-212.  The diagnosis represented a character and behavior disorder.

The request for the applicant's discharge submitted by command is not in the applicant's service personnel records; however, two endorsements related to the action are present.  These two endorsements reveal that the applicant's request for discharge under AR 635-212 was submitted on 10 December 1969, and was approved under the provisions of AR 635-212 (SPN (Separation Program Number) 28B) by the approval authority, a major general, on about 16 January 1970.  In his approval, the approval authority directed that the applicant be separated for unfitness and that he be furnished an Undesirable Discharge Certificate.

On 18 January 1970, the unexecuted portion of the sentence to confinement at hard labor for five months adjudged on 29 October 1969 was suspended until 18 February 1970, at which time, unless suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.

The applicant was discharged on 20 January 1970 in the rank and pay grade of Private, E-1, under the provisions of AR 635-212.  The applicant was given a SPN of 28B.  His service was characterized as under other than honorable conditions and he was provided an Undesirable Discharge Certificate.  At the time of his discharge, he had 1 year, 11 months, and 24 days creditable active Federal service and 86 days lost time due to absence without leave and confinement.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
AR 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.

AR 635-200, paragraph 3-7, defines a general discharge as 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.  A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization.

The above referenced regulation also 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.

AR 635-5, in Appendix I (Separation Program Number and Authority Governing Separations) specifies that SPN 28B will be applied to the DD Form 214 of those individual who are discharged under authority of AR 635-212 for unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities. 

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.  All documents pertinent to the applicant's discharge are not in his service personnel record.  The applicant’s record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant.  This document identifies the reason and characterization of the discharge and the Board presumed government regularity in the discharge process.  

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 applicant provided no evidence that his age or level of maturity impaired his ability to be a good soldier or that he was any less mature than other soldiers of the same age who successfully served their country and successfully completed their military service obligation.

4.  The forfeitures of pay and reductions in rank that the applicant sustained, his discharge, and the characterization of his discharge, were a direct result of disciplinary actions brought upon himself by his misconduct.

5.  The applicant's DD Form 214, indicates that the applicant was discharged on 20 January 1970, under AR 635-212, for unfitness-involvement in frequent incidents of discreditable nature with civil or military authorities, and that he was issued an undesirable discharge.

6.  The record shows that he accepted nonjudicial punishment on three occasions and received a special court-martial for a series of violations of regulations.  While on a special leave in return for his extension of duty in Vietnam, the applicant was arrested by civil authorities.  The applicant was barred from reenlistment because of his misconduct and he overdosed on drugs on the day he was being readied for confinement.  When a line of duty investigation was conducted, the findings of the investigation were, "Not in the line of duty – due to own misconduct."  In view of the numerous instances of misconduct, an undesirable discharge does not appear to be unduly harsh.

7.  There is no evidence, beyond the incident, the applicant's drug overdose, that required that a line of duty investigation be conducted that the applicant was involved in abuse of some form of drug that caused his conduct and behavior to change.  The evidence of records shows that the applicant had been involved in incidents that required imposition of nonjudicial punishment as early as when he was in AIT at Fort McClellan in March 1968.

8.  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 a general discharge or to a fully honorable discharge.

9.  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 failed to submit evidence that would satisfy this requirement.

10.  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

___slp___  __rld____  ___fe___  DENY APPLICATION

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

INDEX

CASE ID	AR2003091657	
SUFFIX		
RECON		
DATE BOARDED	2003/10/07	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19700120	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  360	144.0000	
2.  592	144.5100	
3.		
4.		
5.		
6.