MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 April 2000
	DOCKET NUMBER:   AR1999033071

	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. Joseph A. Adriance		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:  In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was not mentally capable of properly serving in Vietnam.  He also indicates that his military medical records will show that he had a mental breakdown in both Germany and Vietnam during his service.

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

On 13 May 1970, he enlisted in the Regular Army for 3 years.  He successfully completed basic training and advanced individual training (AIT) at Fort Ord, California.  Upon completion of AIT he was awarded military occupational specialty 11B (Infantryman).

His record shows that the highest rank he attained while on active duty was specialist/E-4.  The applicant earned the following awards and decorations during his tenure in service: the National Defense Service Medal, the Combat Infantryman Badge, the Air Medal, the Vietnam Service Medal, the Vietnam Campaign Medal and the Rifle Marksman Badge.  There are no other documented acts of valor, significant achievement, or service warranting special recognition on file.

The record does show an extensive disciplinary history, which includes his conviction by a special court-martial and his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on three separate occasions.

The applicant’s Department of the Army Form 20 (Qualification Record) indicates that he had two periods of time lost due to AWOL: the first for 6 days from 18 to 23 July 1970 and the second for 7 days from 24 to 30 August 1970.   

On 18 August 1970, while still in AIT, the applicant accepted NJP for failing to report for training with his unit.  His punishment for this offense was 14 days of restriction and extra duty.

On 10 December 1970, the applicant accepted NJP for failing to go to his prescribed place of duty and for two separate incidents of willfully disobeying an order from a superior commissioned officer.  His punishment for these offenses included a forfeiture of $69.00 per month for two months.  

On 12 February 1971, he accepted NJP for being AWOL from his unit on 
11 February 1971.  His punishment included a forfeiture of $22.00 and a reduction in grade to private/E-1 (suspended for 60 days).

On 23 November 1971, the applicant was convicted by special court-martial for communicating reproachful words toward a superior noncommissioned officer (NCO).  The resultant sentence included a forfeiture of $150.00 per month for 
2 months and a reduction in rank to private first class/E-3.

On 15 January 1972, the applicant underwent a mental status evaluation.  This evaluation found that the applicant had no significant mental illness; that he was mentally responsible; that he was able to distinguish right from wrong and to adhere to the right; that he had the capacity to understand and participate in elimination board proceedings; and that he met retention standards prescribed in Army medical regulations.  

On 15 January 1972, he also underwent a complete separation physical examination.  In the clinical evaluation portion of this examination, the psychiatric section contained only one comment, which was that the applicant had “misused drugs”.  In addition, the applicant was given a 111111 physical profile and placed in a physical category of A.  The summary of the examination contained only the following two comments: misuse of drugs and normal psychiatric evaluation.  Finally, at the conclusion of the examination, the applicant was found fully qualified for discharge/retention by competent medical authority.

On 24 January 1972, the applicant’s unit commander notified the applicant that he intended to recommend he be discharged for unfitness, under the provisions of Army Regulation 635-212, based on his repeated incidents of a discreditable nature and his established pattern of shirking.  The applicant acknowledged receipt of this notification and after consulting legal counsel and being advised of the basis for the contemplated separation action and its effects, he completed his election of rights.  In his rights statement, he waived his right to consideration of his case before an administrative separation board and his right to a personal appearance before that board.  In addition, he also waived representation by counsel and elected not to submit a rebuttal statement in his own behalf.  

On 26 January 1972, the appropriate separation authority approved the applicant’s discharge for unfitness, under the provisions of Army Regulation
635-212.  He further directed that the applicant be furnished an Undesirable Discharge Certificate and that he be reduced to the lowest enlisted grade. 

Accordingly, on 22 February 1972, the applicant was discharged with a UD, after having completed 1 year and 27 days of active military service, and having accrued 13 days of time lost due to AWOL.

On 20 May 1974, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge and found that the discharge process was proper and equitable in all respects.

Army Regulation 635-212, then in effect, provided, in pertinent part, the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals discharged under this regulation would normally be issued a UD.

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 Board found no evidence to support the applicant’s contention that he was mentally incapable of serving in Vietnam and that he had suffered mental breakdowns during his military service.  The record shows that the applicant underwent a complete mental evaluation and physical examination during the discharge process, and that he was found mentally and medically fit for discharge by competent medical authority.  Therefore, the Board found no basis to grant the relief requested by the applicant.

2.  After carefully examining the evidence or record and the independent evidence submitted by the applicant, the Board determined that the discharge proceedings were conducted in accordance with law and regulations applicable at the time, and that the character of the discharge is commensurate with the applicant's overall record of military service.

3.  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.

4.  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	AR1999033071	
SUFFIX		
RECON		
DATE BOARDED	2000/04/12	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1972/02/22	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.