MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            22  June 2000           
	DOCKET NUMBER:   AR1999030320

	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:  In effect, that his general discharge (GD), under honorable conditions, issued to him under the provisions of the Department of Defense (DOD) Special Discharge Review Program (SDRP) on 19 May 1978 by the Army Discharge Review Board (ADRB) be affirmed.

APPLICANT STATES:  In effect, that he served the period of time that he was required to serve.  This service included 11 months and 28 days of duty in the Republic of Vietnam (RVN).  During the timeframe in which he served in the Army the climate was highly prejudice.  When he was discharged his legal representation was inadequate.

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

On 6 December 1965, he enlisted in the Regular Army for a period of 3 years and training in military occupational specialty (MOS) 36K (Field Wireman).  On 
6 December 1965, he was assigned to Fort Polk, Louisiana, for basic combat training (BCT) and for advanced individual training (AIT).

On 13 January 1966, while in BCT, nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice, was imposed against the applicant for failure to obey a lawful order to report to a noncommissioned officer (NCO) on 10 January 1966.  His punishment included forfeiture of pay, restriction and extra duty.

He completed BCT and AIT and on 23 May 1966, he was assigned to Fort George G. Meade, Maryland.  On 22 July 1966, NJP was imposed against him for being disrespectful in language towards a NCO on 17 July 1966.  His punishment included reduction from pay grade E-3 to pay grade E-2, forfeiture of pay and restriction.

In August 1966, he was assigned to the RVN.  On 6 August 1967, NJP was imposed against him for disobeying a lawful order to report to duty on 4 August 1966.  His punishment included reduction from pay grade E-3 to pay grade E-2, forfeiture of pay and restriction.

On 17 August 1967, he returned to the United States and was assigned to Fort Sill, Oklahoma.  On 15 November 1967, NJP was imposed against him for being disrespectful in language towards a NCO on 9 November 1967.  His punishment included forfeiture of pay and restriction.  An appeal was denied.

On 4 January 1968, NJP was imposed against him after being apprehended by military police for traveling 42 miles per hour in a 25 mile per hour speed zone on 6 December 1967.  His punishment included forfeiture of pay and restriction.  

On 29 January 1968, the applicant was convicted by a special court-martial of disobeying a lawful order and of being disrespectful in deportment towards a superior NCO by turning and walking away from him in a contemptuous manner, on 
9 December 1967, and also of disobeying a lawful order given on 27 December 1967.  He was sentenced to confinement at hard labor for 5 months (suspended for 6 months) and forfeiture of $50.00 pay per month for 6 months.  

On 25 March 1968, the suspended portion of the sentence imposed on 
29 January 1968 was vacated when on an unknown date he disobeyed an order given by his commanding officer.  He served in confinement from 26 March 1968-8 September 1968.

On 24 September 1968, NJP was imposed against him for being disrespectful in language towards a commissioned officer on 23 September 1968.  His punishments included forfeiture of pay and restriction.  

On 5 December 1968, a mental status evaluation shows that the applicant was found to have a sociopathic personality, severe that existed prior to enlisting in the service.  He was also determined to have been mentally responsible to distinguish right from wrong and to adhere to the right.  He had the mental capacity to understand and participate in the board proceedings.  The recommendation was separation under the provisions of Army Regulation 
635-212.

On 9 December 1968, NJP was imposed against him when he walked away from a NCO when he was told to clean an area.  His punishment included reduction from pay grade E-2 to pay grade E-1, forfeiture of pay and restriction.  

On 13 December 1968, his commander notified the applicant that he was being considered for separation under the provisions of Army Regulation 635-212, for unfitness.

On 13 December 1968, he acknowledged notification.  He stated that he had been advised by counsel of the basis for the proposed separation action and his rights.  He requested a personal appearance before a board of officers.  He did not submit a statement in his own behalf. 

On 27 January 1969, the applicant was notified that a board of officers would convene on 12 February 1969 to determine whether he should be discharged under the provisions of Army Regulation 635-212, for unfitness prior to the expiration of his term of service.   

On 12 February 1969, the applicant appeared before the board of officers with counsel. The board of officers determined that he was undesirable for further retention in the military because of habits and traits of character manifested by repeated commission of petty offenses.  The board considered his honorable period of service.  Rehabilitation was not deemed possible.  Therefore, the board of officers recommended that he be separated under the provisions of Army Regulation 635-212, for unfitness with a UD. 

On an unknown date, the final approval separation authority approved this recommendation. 

On 17 March 1969, the applicant was discharged under the provisions of 
Army Regulation 635-212, for unfitness with a UD.  He had completed 2 years, 
9 months and 25 days of creditable military service and he had 167 days lost time due to being in confinement.  

His awards and decorations included the National Defense Service Medal, the Vietnam Service Medal with 1 bronze service star, the RVN Campaign Medal with 60 Device and one Overseas Service Bar.

On 19 May 1978, the ADRB upgraded the applicant’s UD to a GD, under honorable conditions, under the provisions of the DOD SDRP.

On 26 July 1978, the ADRB reviewed the applicant’s discharge upgrade, under the provisions of Public Law 95-126 and confirmed that the discharge met all procedural requirements for separation processing and that the rights of the applicant were protected throughout the discharge process.  The ADRB considered the applicant’s overall record of service and the multiple NJP’s that he had received for a variety of offenses and concluded that affirmation of the SDRP upgrade of 19 May 1978 was not warranted.  Therefore, the ADRB voted not to affirm the applicant’s discharge under uniform standards.

Army Regulation 635-212, in effect at the time set forth the basic authority for the separation of enlisted personnel who were found to be unfit or unsuitable for military service.  The regulation further provided, in pertinent part, that service members discharged for unfitness would be furnished a UD, unless circumstances warranted a general or honorable discharge.

On 4 April 1977, the DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 
28 March 1973.  This program entitled the DOD 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.
In October 1978, Public Law 95-126 was enacted.  This legislation required that service Departments establish historically consistent, uniform standards for discharge reviews.  Previously upgraded discharges under the SDRP and other programs were to be reconsidered using the uniform standards.  Those individuals whose SDRP upgrades were not affirmed upon review under the historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

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 Board notes the upgrade taken by the ADRB on 19 May 1978 under the SDRP; however, this Board concurs with the findings and conclusions of the ADRB in its decision not to affirm the discharge upgrade under the provisions of Public Law 95-126 and the established uniform standards in July 1978.  

3.  This Board took into consideration the applicant’s good service, to include his RVN service.  However, these periods of service were not sufficient to warrant an affirmation of the applicant’s discharge.  

4.  Further, there is nothing in the applicant’s records and he has provided nothing that indicates that the offenses he committed were in any way caused by prejudicial treatment or discrimination within the various commands to which he was assigned. 

5.  If the applicant believes that his counsel was inadequate this matter should have been resolved during the discharge process.  His administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors which would have jeopardized his rights. 

6.  Therefore, the type of discharge directed and the reason for the discharge was appropriate considering the facts of the case. 

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

__lls____  __aao___   ___ra___  DENY APPLICATION

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

INDEX

CASE ID	AR1999030320	
SUFFIX		
RECON		
DATE BOARDED	20000622	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19690317	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	A51.00	
BOARD DECISION	(Deny)	
REVIEW AUTHORITY		
ISSUES         1.	144.5000	
2.		
3.		
4.		
5.		
6.