MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          22 June 2000
	DOCKET NUMBER:  AR1999030298

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Roger Able		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:  The applicant requests that his undesirable discharge (UD) be changed to a medical discharge.

APPLICANT STATES:  In effect, that he believes that he unfairly received a UD when he should have been granted a medical discharge as a result of an eye problem.  He had a medical board and was retained as a result of his eye problem.  He was waiting to be discharged when he requested a pass and caught a ride with someone that was going in the direction of his home.  He called to check the status of his discharge, it was then that he was told that he was absent without leave (AWOL).  He returned as soon as he found out that he was AWOL.  At the time of his discharge he was medically unable to serve.  Prior to being discharged he received nonjudicial punishment for not getting a haircut. He feels that the punishment was harsh.  He applied to the Army Discharge Review Board (ADRB) for a personal appearance.  His representative expired and he failed to appear before that board because he was unaware of the exact date.  He has never received the letter from the Department of Veterans Affairs (DVA) dated 3 January 1973 as referenced in the 3 September 
1998 correspondence that he has submitted along with his application.  He also submits clinical records/consultation sheets dated 12, 14, and 19 May 1969, and a physical profile record dated 1 August 1969 in support of his request.  

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

That on 25 October 1968, he enlisted in the Regular Army for a period of 
3 years.  He completed basic training at Fort Dix, New Jersey.  On an unknown dated he was assigned to the United States Army Ordnance Center and School, Army Proving Grounds (APG), Maryland to attend advanced individual training (AIT) in Military Army Career Group 63 Automotive Maintenance. 

On 4 March 1969, while he was assigned to APG nonjudicial punishment (NJP) under the provision of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against him for failure to go to his appointed place of duty at the time prescribed on 4 February 1969 and for being AWOL from his unit between 
8-12 February 1969.  His punishment included forfeiture of pay, 14 days restriction and extra duty.  The available records do not show that he ever completed this training.

On unknown date he was assigned to Fort Lee, Virginia to attend AIT in military occupational specialty (MOS) 76P (Material Control and Accounting Specialist. 

On 7 April 1969, NJP was imposed against him for disobeying a lawful order to get a haircut on 4 April 1969.  His punishment included forfeiture of pay, extra duty and restriction.
On 9 May 1969, NJP was imposed against him for being absent from his assigned place of duty and for being disrespectful in language towards a noncommissioned officer on 9 May 1969.  His punishment included reduction from pay grade E-2 to pay grade E-1 and forfeiture of pay.

On 16 May 1969, NJP was imposed against him for being absent from his assigned place of duty on 10, 11, and 12 May 1969 and for breaking restriction on 12 May 1969.  His punishment included forfeiture of pay, extra duty and restriction.

On 23 May 1969, he appealed the 16 May 1969 NJP action.  However, the proceedings were determined to have been conducted within the law and regulations, the punishment was determined to have been appropriate, and the appeal was denied.

On 1 June 1969, the applicant departed his unit at Fort Lee AWOL and remained AWOL until he was returned to military control at the Special Processing Detachment, Fort Belvior, Virginia on 1 July 1969.  On 9 July 1969, NJP was imposed against him for being AWOL.  His punishment included forfeiture of pay extra duty and restriction.

On 1 August 1969, he was determined to be medically qualified for limited duty as a result of having a macular cyst on his right eye.  He was granted a Physical Profile with Limitation “J”-No assignment involving firing of weapons except for qualifying.  Limitation “U”-No driving government vehicles and no duties requiring prolonged binocular vision.  His condition was permanent.  However, he continued to perform his military duties.

On 2 September 1969, he was assigned to Fort Belvoir, Virginia in duty MOS 76Y.  On 9 October 1970, a Federal Bureau of Investigation Report shows that he was arrested on 21 September 1970 and charged with first degree rape.  The disposition of the charge is unknown.

On 15 June 1971, he underwent a medical examination and was determined to be physically qualified for separation.

On 12 July 1971, he was convicted by a special court-martial of being AWOL from 22 January-3 June 1971.  He was sentenced to confinement at hard labor for 3 months, forfeiture of $55.00 pay per month for 4 months and reduction from pay grade E-2 to pay grade E-1.

On 19 August 1971, the applicant signed an affidavit in which he stated that “he had been advised of his rights and the advantages of remaining in active duty status in the Army beyond the scheduled date of his expiration of term of service (ETS) for the purpose of continuing medical care or hospitalization and, if eligible, subsequent separation or retirement for physical disability under the provisions of chapter 61, title 10, U.S.C.”  His ETS date was approximately 
25 October 1971.

Further, the affidavit shows that he acknowledged that he understood that if he elected to be discharged or released from active duty as he was scheduled, he would not after being discharged or released be eligible for separation or retirement for physical disability.  He authenticated the affidavit with his own signature indicating that he “did not” desire retention on active duty in the Army beyond his scheduled ETS. 

Not all of the facts concerning the discharge process are a matter of record. However, the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which he signed, indicates that he was discharged on 23 September 1971 under the provisions of chapter 6a(1), Army Regulation 635-212, for unfitness, by reason of being involved in frequent incidents of a discreditable nature with civil or military authorities.

He had completed 2 years, 3 months and 1 day of active military service and he had a total of 238 days lost time due to being AWOL and in military confinement.

On 3 September 1998, the DVA notified the applicant that he was not entitled to DVA benefits for the period 25 October 1969 through 23 September 1971.  Further, the letter stated that he had been previously notified of this decision on 3 January 1973. 

There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge.  

Army Regulation 635-212, in effect at the time set forth the basic authority for
the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, for the separation of individuals determined to be unfit for further service by reason of frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A UD was normally considered appropriate.

Army Regulation 40-501, paragraph 3-3a, in effect at the time, provided that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

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 aforementioned requirement.

2.  The clinical record/consultation sheets that the applicant submitted show that he claimed that he was losing vision in his right eye and that he noted differences in color and brightness.  He received a physical profile which shows he was not required to perform some specific duties due to the fact that he had a macular cyst on his right eye.  However, he continued to serve in an active duty status with these assignment limitations.

3.  Regulations in effect at the time provided that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

4.  There is no evidence in the available records which shows that a Medical Evaluation Board ever evaluated him.  As a matter of fact, he signed an affidavit in which he waived retention, continued medical care and or discharge processing for a physical disability separation.  Further, he received a medical processing examination and was physically cleared for separation during the administrative discharge processing.

5.  The DVA, operates under its own policies and regulations, and it is not within the purview of this Board to interfere with DVA decisions.

6.  If in fact, the applicant believes that any NJP action that he received was too harsh he had the right to appeal the punishment.  Whether to accept an appeal is a command prerogative and the Board is not inclined to interfere with the judgement of the commander on the ground at the time.  The applicant has not proved that the NJP that he received on 7 April 1969 for not getting a haircut was administratively incorrect or that there was any evidence of procedural errors which would have jeopardized his rights.

7.  The Board notes that not all of the facts and circumstances concerning the applicant’s discharge are in his file.  However, in connection with a discharge under the provisions of Army Regulation 635-212, he would have violated the UCMJ by being frequently involved in incidents of a discreditable nature with civil or military authorities.  He would have been required to consult with legal counsel.  He would have had to acknowledge that he had been advised of the basis for the contemplated action and its effects, and the rights available to him to include a hearing by a local board of officers and he would have had the opportunity to submit a statement in his own behalf.  He also would have acknowledged that he understood the consequences of receiving a UD.

8.  The Board also noted that the applicant authenticated his DD Form 
214 during the discharge process.  The discharge identifies the characterization and the reason.  The Board presumes regularity in the discharge process.  

9.  Therefore, the type of discharge directed and the reason for discharge were appropriate considering the facts of the case.

10.  The applicant’s conduct was inconsistent with the Army’s standards for 
acceptable personal conduct and his overall quality of service do not warrant an upgrade of his discharge.

11.  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

__lls____  ___aao__  __ra_____  DENY APPLICATION

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

INDEX

CASE ID	AR19999030298	
SUFFIX		
RECON		
DATE BOARDED	20000622	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19710923	
DISCHARGE AUTHORITY	AR635-212  	
DISCHARGE REASON	A40.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.4000	
2.		
3.		
4.		
5.		
6.