MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            25 July 2000                  
	DOCKET NUMBER:   AR1999032365

	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. Antoinette Jones-Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern		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 discharge, or at the least a general discharge under honorable conditions.

APPLICANT STATES:  That the 82nd Airborne Division soldiers that returned from combat in the Republic of Vietnam (RVN), were now being sent back to fight.  He states that he and the others did not want to go back since their unit had been severely hit.  This resulted in him spending 6 months in a youthful offender camp.  The applicant states that he was provided an upgrade by the commanding officer of the “82nd Airborne”, for cooperating with a local county’s police department.  He repeatedly tried to follow up on promises made to him.  He is dying of cancer and Hepatitis C.  He provides a copy of his DD Form 
293 (Application for The Review of Discharge or Dismissal from The Armed Forces of The United States), a copy of VA Form Number 21-526 (Veterans Application for Compensation or Pension) and a number of medical documents showing treatment by the Department of Veterans Affairs. 

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

He enlisted in the Regular Army on 10 July 1967, for a period of 3 years. He completed basic training at Ft Bliss, Texas, and advanced individual training
on 25 September 1967 at Fort Dix, New Jersey.  He was awarded military occupational specialty (MOS) 11H, (Infantryman Indirect Fire Crewman).
On 2 December 1967, he was further assigned to Fort Benning, Georgia, for training as a parachutist (airborne training). 

He was then transferred to Fort Bragg, North Carolina, for duty as an infantryman.  His entire unit was transferred shortly thereafter to the RVN.  He served in the RVN from 14 February to 21 July 1968, as an Infantryman (MOS 11B).  He further states that his medical problems are directly caused by serving in the Army during this time period.  While in the RVN he was promoted to the rank of sergeant, pay grade E-5.  His unit was then returned to Fort Bragg.

His DA 20 (Enlisted Qualification Record) and a Federal Bureau of Investigation (FBI) report shows that the applicant was listed as being AWOL from Fort Bragg from 10 August to 5 September 1968.  There is no recorded punishment for this offense.

On 6 October 1968, he was apprehended and confined for possession of drugs, by Fayetteville County (North Carolina) police officials.  He returned to military control on 14 October 1968.

On 26 November 1968, he was indicted by a local grand jury (presumably for the drug related incident), and was held in civilian confinement until 18 December 1968, when he was returned to military control.

On 3 February 1969, it appears that he pled guilty and was sentenced to 2-years imprisonment in the Carolina State Department of Corrections, by a civilian court. 

On 14 May 1969, his commander requested that the applicant be discharged from the service by reason of conviction by a civilian court.  With this request he submitted an FB Form 1175 (Individual and Counsel Statement), undated, which afforded the applicant the opportunity to consult with legal counsel concerning the discharge action.  He declined this opportunity.  He further waived his rights to representation, appearance, and consideration of his case before a local board of officers.  He declined to submit a statement in his own behalf.  The applicant also indicated in writing, that he did not intend to initiate action to appeal his civil conviction.  

On 16 June 1969, the separation authority approved the recommendation and directed discharge under the provisions of AR 635-206, section III, for conviction by civil court with an undesirable discharge.  The applicant was discharged on 
30 June 1969 with 1 year, 5 months and 24 days total time in service and 
177 days of lost time due to AWOL and confinement (the last three periods of civilian confinement are considered lost time under the Uniform Code of Military Justice).  

The applicant requested that the Army Discharge Review Board (ADRB) change his character of service to honorable.  On 18 July 1980 the ADRB, by unanimous vote, denied the applicant’s request.

Army Regulation 635-206, in effect at that time sets forth the basic authority for the separation of enlisted personnel for misconduct.  Section III provided for separation of personnel convicted by civil authorities for offenses involving moral turpitude, adjudication as an juvenile offender or an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.  An undesirable discharge was normally given for such discharges. 

Army Regulation 40-501, paragraph 3-3a, as amended, provides 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.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time. 

2.  In view of the applicant’s repeated acts of indiscipline, and the seriousness of his civilian conviction, it does not appear that his undesirable discharge was too severe.

3. There is no evidence, and the applicant has provided no evidence, which supports his contention that after returning from his period of AWOL or civilian confinement that he was not afforded medical treatment by the Army.  Once he was convicted and sentenced to 2 years confinement on 3 February 1969, he essentially never returned to military control. 

4.  The applicant’s continued performance of duty raised a presumption of fitness, which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

5.  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 this requirement.

6.  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

__tsk____  ___sk___  __jhk____  DENY APPLICATION

    Carl W.S. Chun
    Director, Army Board for Correction
    Director

INDEX

CASE ID	AR1999032365	
SUFFIX		
RECON		
DATE BOARDED	20000725	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19600630	
DISCHARGE AUTHORITY	AR .635-206, Sec III	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.00	
2.	A01.00	
3.	A92.17	
4.	A92.27	
5.	A92.31	
6.