MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  20 June 2000
	DOCKET NUMBER:   AR1999032721

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. James E. Anderholm		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 given in 1969 under conditions other than honorable be upgraded to a general discharge under honorable conditions.

APPLICANT STATES:  “He feels he should have been awarded a National Defense Service Medal for his service in the military.  While it is true that most of his time in the military was served in the stockade or correctional training facility at Fort Riley, he does not believe he served without honor.  He practiced his trade as a soldier and trained whenever he could.  It is his opinion that dissent within and without the military is a marked principal of American life.  He truly believes that where justice lies, is that many fled to other countries and were pardoned in 1975.  He had paid dearly through loss of employment and opportunity for having voted the conscience of an idealistic youth.  It is his opinion that if the wounds of the Vietnam war are to be healed, all must be let come home.  He hopes to be granted a general discharge under honorable conditions.”  He provides a statement concerning community service he has given.

He provides two letters of character reference, one from his sister and one from a neighbor.  He provides two letters, one from a psychiatrist and one from a case worker.  The case worker reports, “that the applicant has a history of upwards of 25 psychiatric hospitalizations and 16 chemical dependency detoxification/
in-patient programs starting in 1975.”  The psychiatrist states that, “the applicant is diagnosed with schizoaffective disorder and alcohol dependence for which he has been treated for many years.”

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

That he was inducted into the Army on 10 July 1968 for a two year term of service.  He was given a moral waiver for prior convictions for 2 episodes of petty larceny in 1967 for which he was sentenced to 30 days and 90 days incarceration respectively; minor consumption for which he was fined $25; and violation of game laws for which he was sentenced to 30 days confinement, 
28 days suspended.

He entered Basic Combat Training (BCT) at Fort Lewis, Washington.  The record shows lost time from 3-9 September 1968.  He was AWOL from 6-19 November 1968 for which he received an Article 15 and punishment of forfeiture of seven days pay.  He was again AWOL from 5 December 1968 to 17 February 1969 for which he was convicted by a special court-martial and sentenced to forfeiture of $65 a month for six months and confinement at hard labor for six months, 

suspended.  The suspended confinement was vacated on 31 March 1969 and the unexecuted portion of the sentence to confinement was executed.  He was released from confinement on 12 June 1969.

He was transferred to Fort Gordon on or about 16 June 1969 for Advanced Individual Training as a telephone switchboard operator.  He was AWOL from 
22-28 July 1969 and then again from 2-6 August 1969.  On 19 August 1969, the applicant was convicted by a special court-martial for these two periods of AWOL.  He was sentenced to six months confinement at hard labor, reduction from E-2 to E-1, and forfeiture of $70 per month for six months.  He was in confinement until his discharge on 8 October 1969.

On or about 17 September 1969, the applicant was notified of proposed discharge action under Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature.  An undesirable discharge was recommended.  On 18 September 1969, the applicant signed a statement that he had received legal counsel on his separation and was informed of his rights.  He waived his rights and elected not to submit a statement in his own behalf.  The legal counsel and rights statement was counter signed by his legal counsel.  The Fort Gordon Commanding General considered the applicant’s complete military record and separation recommendation, and approved an undesirable discharge on 29 September 1969.  The applicant was so discharged on 8 October 1969 with 5 months and 16 days creditable service and 287 days lost due to AWOL and confinement.

The applicant’s records show that he was convicted of arson, 2nd degree, on 
3 July 1974 in the state of Washington and confined in the state penitentiary.  He was released on parole three separate times but was each time sent back to the penitentiary for parole violation.  He was released from the penitentiary on 
16 November 1981 and transferred to a work release program.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 6 April 1979, the ADRB reviewed the applicant’s military record and his discharge.  They found the applicant’s undesirable discharge to be proper and equitable considering his AWOLs, confinements, and high number of lost days.

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, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent 

exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 

According to the Army Regulation 600-8-2, Military Awards, the National Defense Service Medal is awarded to soldiers for honorable active service during specific periods of history.  During the Vietnam War era, the period was from 1 January 1961 to 14 August 1974.

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 applicant received an undesirable discharge for unfitness for 4 periods of AWOL which resulted in one Article 15, two convictions by special courts-martial, two periods of confinement at hard labor, and 287 lost days during the period of his service from 10 July 1968 to 8 October 1969.  During this period of service, he had only 166 days of creditable service.  Under these circumstances, the character of his service was under other than honorable conditions and his undesirable discharge is correct and just.

2.  Pardons referred to by the applicant were only for those who failed to register for the draft or those who failed to show up when drafted.  Such pardons did not apply to service members who enlisted or were inducted.  A clemency program was instituted for Vietnam Era soldiers but the applicant’s service does not qualify for clemency according to the program’s definition.

3.  The applicant’s service was not sufficiently honorable as to warrant discharge clemency.  While he has made some contributions to his community by volunteer service and has obtain increased education, this post service conduct is not sufficient to compensate for his service conduct and his post service conviction and imprisonment for arson, 2nd degree.

4.  Award of the National Defense Service Medal requires honorable service.  The record shows that the applicant, by his actions, did not qualify for honorable service.  Therefore, he is not entitled to this medal.

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

_VC___  ___EL_  ___JA___  DENY APPLICATION

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

INDEX

CASE ID	AR1999032721	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000615	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.110	Discharge Document	
2.		
3.		
4.		
5.		
6.