MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 April 2000
	DOCKET NUMBER:   AR1999031175

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. James P. Steuve		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:  That his undesirable discharge be upgraded to honorable.

APPLICANT STATES:  That he has medical problems that stem from his exposure to Agent Orange in Vietnam and is badly in need of medical care.  He further states that he suffers from black-outs and flashbacks from the war and at times does not even want to leave his home.  He also states that he was not in his right mind when he left the military and knows that he was wrong at the time; however, he was afraid that he would be sent back to Vietnam and would be killed.  He further states that his condition is such that he could very well be on the front page of the newspaper being executed in the electric chair for killing someone.  He also states that he got medical attention when he was in prison but does not have any now and does not want to go back to prison to get any.

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

He enlisted in Yakima, Washington on 25 June 1969 for a period of 3 years and training as a supply clerk.  He successfully completed his training and was transferred to Fort Bragg, North Carolina on 31 October 1969.

On 13 April 1970, after being returned to military control at Fort Benning, Georgia, he was convicted by a special court-martial of being AWOL from 20 January to 6 March 1970 and from 20 March to 3 April 1970.  He was sentenced to confinement at hard labor for 31 days, reduction to the pay grade of E-1, and a forfeiture of pay.

On 9 June 1970 nonjudicial punishment was imposed against him for being AWOL from 12 May to 13 May 1970.  His punishment consisted of restriction and extra duty.

On 10 July 1970 nonjudicial punishment was imposed against him at Fort Lewis, Washington for missing movement to Vietnam.  His punishment consisted of a forfeiture of pay.

He departed for Vietnam on 13 July and remained there until 7 November 1970 when he was returned to Madigan General Hospital in Tacoma, Washington as a patient.  The facts and circumstances surrounding his patient status are not present in the available records. 

The applicant went AWOL on 16 November 1970 and was subsequently arrested and confined by civil authorities in Yakima, Washington for first degree forgery. 

The facts and circumstances surrounding his administrative discharge are not present in the available records; however, his records do contain a duly constituted report of separation (DD Form 214) which shows that he was discharged under other than honorable conditions on 31 March 1971, under the provisions of Army Regulation 635-206, based on his conviction by civil authorities.  He had served 1 year, 6 months, and 6 days of total active service and had 92 days of lost time due to AWOL and confinement. 

There is no indication in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be processed for separation.  An undesirable discharge was normally considered appropriate.

Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or AWOL.  A discharge under other than honorable conditions is normally considered appropriate. 

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 the absence of evidence of the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, given the seriousness of his offense and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge.

4.  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.

5.  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

__rgh___  ___jps___  ____be__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031175	
SUFFIX		
RECON		
DATE BOARDED	2000/04/12	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/03/31	
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	627	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  626	144.6100/A61.00	
2.		
3.		
4.		
5.		
6.