MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:          17 August 2000
	DOCKET NUMBER:  AR1999032844

	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:

	Ms. Sherri V. Ward 		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons 		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 (UD) be upgraded to a fully honorable discharge (HD) and that his benefits be restored.

APPLICANT STATES:  In effect, that prior to the discharge under review, he was injured while serving in the Republic of Vietnam (RVN).  He had no disciplinary problems and he received an HD.  He believes that he was treated unjustly when he received a UD due to his physical condition and the number of years that he honorably served.

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

That prior to the enlistment under review, he served honorably in the Regular Army (RA) from 24 June 1966- 27 August 1967.

On 28 August 1967, he reenlisted in the RA for a period of 3 years and his previous military occupational specialty (MOS) 12C (Bridge Specialist).  He was assigned to the RVN on 18 January 1968.  

His DA Form 20 (Enlisted Qualification Record) shows that he was a patient in the 106th General Hospital, overseas from 30 January to an unknown date in March 1969.  There is no evidence that his hospitalization was due to any type of wounds received as a result of hostile action.  On 22 March 1966, he was assigned to Fort Leonard Wood, Missouri. 

He departed his unit in an absent without leave (AWOL) status from 28 March 1969-13 July 1969 and from 30 July-9 August 1969.  He was placed in pretrial confinement from 15 August-24 September 1969.

On 25 September 1969, he was convicted by a special court-martial (SPCM) of the above periods of AWOL.  His sentence included confinement at hard labor for 6 months (suspended), reduction from pay grade E-5 to pay grade E-1, but any reduction in excess of pay grade E-4 was suspended for 6 months.  

On 17 October 1969, the suspended portion of the applicant’s sentence to confinement by his SPCM on 25 September 1969 was vacated.  He was confined at hard labor for 6 months.  He was reduced to pay grade E-1.

On 6 November 1970, he was convicted by a SPCM of being AWOL from 
30 August-24 September 1970.  His sentence included confinement at hard labor for 3 months (suspended) and forfeiture of $50.00 pay per month for 
3 months.

On 12 November 1970, the suspended portion of his sentence to confinement by his SPCM on 6 November 1970 was vacated.  He was confined at hard labor for 3 months.  

On an unknown date, the applicant’s commander notified him that he was being recommended for separation under the provisions of Army Regulation 635-212, for unfitness.  

The applicant authenticated an undated document with his own signature in which he stated that he had consulted with legal counsel.  He acknowledged that he had been advised of the basis for the contemplated action and its effects, and the rights available to him.  He also stated that he understood the consequences of receiving a UD.  He waived further representation by legal counsel and a personal appearance before a board of officers.  He did not submit a statement in his own behalf.

On an unknown date, the applicant's unit commander recommended that he be separated under the provisions of Army Regulation 635-212, because of unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities. 

On 21 June 1971, competent authority waived the requirement for further counseling and rehabilitation, approved the recommendation for discharge and directed the issuance of a UD, under the provisions of Army Regulation 635-212, for unfitness.  

His DD Form 214 shows that on 29 June 1971, he was discharged.  He had completed 1 year, 11 months and 1 day of active military service on the enlistment under review and had a total of 484 days lost time due to being AWOL and in military confinement.  Two hundred and eighteen days were lost subsequent to the normal expiration term of service.  He also had completed 
1 year, 2 months, and 24 days on his prior enlistment

On 23 September 1985, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.  The Army Council of Review Boards Case Report and Directive shows that on 14 May 1971, a physical examination and a mental status evaluation cleared him for separation.  

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 discharge or an HD.
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 this requirement.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations, then in effect, with no indication of procedural errors which would have jeopardized his rights.

3.  His conduct was inconsistent with the Army’s standards for acceptable personal conduct.  His time served in the RVN coupled with his prior honorable period of service is not sufficiently mitigating to warrant an upgrade of his discharge. 

4.  On 14 May 1971, The applicant was both mentally and physically cleared for separation.  He did not have any medically unfitting disability which required physical disability processing. 

5.  Veteran’s benefits do not fall within the purview of this agency.  The Department of Veterans Affairs determines eligibility for veteran’s benefits.

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

__svw___  __mhm__  __lds____  DENY APPLICATION

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

INDEX

CASE ID	AR1999032844	
SUFFIX		
RECON		
DATE BOARDED	20000817	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19710629	
DISCHARGE AUTHORITY	AR635-212  	
DISCHARGE REASON	A67.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6700	
2.		
3.		
4.		
5.		
6.