MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           18 July 2000
	DOCKET NUMBER:   AR1999033349

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson 		Chairperson	
	Ms. Elizabeth Buchanon 		Member	
	Ms. Margaret V. Thompson		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:  Reconsideration of his previous application to correct his records by upgrading his discharge to honorable.

APPLICANT STATES:  In effect, he defers to counsel.

COUNSEL CONTENDS:  That the applicant’s separation for “apathy” under other than honorable conditions (UOTHC) has caused a hardship for 30 years.  The Department of Veterans Affairs (VA) will not recognize the applicant’s Clemency Discharge and that the Undesirable Discharge is a permanent bar to VA benefits. The VA does not even consider him to be a veteran.  Counsel further contends that this Board did not obtain the applicant’s records, failed to obtain or consider his Clemency Discharge and improperly failed to waive his failure to timely file.  She maintains that the letter dated 29 December 1968 to the applicant concerning upgrading his discharge misled the applicant into believing that he had 15 years to apply to this Board.  Counsel avers that the applicant was ill and disabled at the time of the discharge and that the reason for discharge should be changed to physical disability.  She cites details from the history provided by the applicant for his separation physical to substantiate this claim.  She contends that the applicant provided competent and decorated military service until January 1968 when his mental and physical problems began.  She avers that the applicant was not informed that the Undesirable Discharge would deprive him of VA benefits.  She contends, in effect, that the DD Form 664 that advised the applicant to apply for VA benefits misled him and created an injustice that warrants the requested relief.  She submits a copy of Army Personnel Center Oakland, CA, Special Orders Number 364, showing that the applicant was separated with a general discharge for unsuitability due to apathy.  Finally, counsel contends that the applicant’s combat service, during which he was wounded, warrants the requested relief.  Counsel notes that the applicant’s record contains orders awarding him the Purple Heart and requests that his DD Form 214 (Report of Separation) be corrected.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case on 
15 June 1988 (COPY ATTACHED).  On that occasion the Board voted to not waive the failure to timely file.

Counsel’s submissions are new argument that requires Board consideration.

The MOC does not state the Board did not have the applicant’s records it states “the facts and circumstances pertaining to the discharge are not on file.”

Some of the separation processing documents are currently available.  These include:

a.  The company commander’s 22 October 1968 recommendation that the applicant be discharged for unfitness.  It notes that the report of a psychiatric examination was attached.  

b.  On 10 December 1968 the group commander approved an involuntary extension of the applicant’s enlistment so that elimination proceedings could be completed.  The disposition form notes that the applicant had accumulated 134 days lost.

c.  A 29 December 1968 letter to the applicant informed him that he was being issued an undesirable discharge and advised him of the procedures for applying to the Army Discharge Review Board (ADRB).  It made no mention of this Board or its function.  

d.  A Serviceman’s Statement Concerning Application for Compensation from the Veteran’s Administration (DA Form 664) dated 28 December 1968 advised the applicant that “Each officer and enlisted person being processed for separation from active military service, is advised to apply for compensation from the Veterans Administration.”  The applicant indicated that he had decided not to apply at that time but that he understood he could apply at a later date.

e.  The report of the applicant’s 23 October 1968 separation medical examination addressed a myriad of complaints and found him qualified for separation with a physical profile of 111111.

f.  On 21 December 1968 the separation authority approved 
the applicant’s discharge for unfitness and directed that an Undesirable Discharge certificate (DD Form 258A) be issued.

Other details of the separation processing are available in the report of the ADRB’s 15 January 1970 review of the applicant’s case: These include notations to the effect that:

	a.  The applicant had waived consultation with counsel in 
an undated document.   

b.  The report of a neuro-psychiatric examination dated 
24 October 1968 evaluation reported a diagnosis of 
chronic severe aggressiveness, defiance of authority, 
reaction to frustration with irritation and destructive 
behavior, existed prior to entry.  The psychiatrist 
recommended separation for unfitness and considered 
that separation processing for unsuitability or any other disposition was not appropriate. 

c.  The applicant had stated that he believed his discharge should be upgraded because he had been wounded and because “Repeated requests to return to my parent unit was denied.  Every time I requested to return to my combat unit, 1st Sergeant D____ gave me Article 15.  Hoping to rejoin my unit in whatever way possible, I did not know that Article 15 would result in an Undesirable Discharge.  Having served 1 year, 8 months and 3 days of a two year enlistment, I respectfully request I be considered for an Honorable Discharge.”

On 2 February 1976 the applicant was granted a Clemency Discharge in accordance with Presidential Proclamation 4313.

Presidential Proclamation 4313, was issued on 16 September 1974.  It provided for a clemency discharge to be issued to certain former soldiers who voluntarily entered into and completed an alternate restitution program.  It was initially intended only for former soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973.  Former members would be granted a clemency discharge by the President of the United States upon successful completion of the alternate service.  This resulted in the restoration of his or her affected civil rights.  The clemency discharge did not effect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.  Soldiers who were AWOL could enter the program by returning to military control and accepting a discharge in lieu of trial by court-martial.

The applicant’s records indicate that he is entitled to the following awards: The Purple Heart for a concussion injury to the back on 11 November 1967, the National Defense Service Medal, the Vietnam Service Medal with 4 bronze service stars, the Combat Infantryman Badge, the Expert Qualification Badge with Pistol bar, the Sharpshooter Qualification Badge with Machinegun bar, the Marksman Qualification Badge with Rifle and Mortal bars, the Republic of Vietnam Gallantry Cross with Palm Unit Citation and The Vietnam Campaign Medal with 1960 device.

Army Regulation 635-40 precludes initiating or continuing disability processing of an enlisted member who is being processed for administrative separation under any regulatory provision that authorizes separation under other than honorable conditions.  The only exceptions are when the officer exercising general court-martial convening authority (GCMA) (who may not delegate this authority) finds that the disability was the cause or a substantial contributing cause of the pertinent misconduct or that other circumstances warrant disability processing.

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.  The character of the discharge is commensurate with the applicant's overall record of military service.

2.  Entitlement to VA benefits is wholly within the purview of the VA and is not a basis upon which this Board grants relief. 

3.  Army Personnel Center Oakland, California Special Orders Number 358, are erroneous.  The applicant was processed for separation for unfitness and separated with an undesirable discharge due to frequent incidents.  However, the applicant’s entry into and completion of the restitution program under Presidential Proclamation 4313 tends to confirm that the he was aware of the nature and consequences of his undesirable discharge. 

4.  No injustice arises from the fact that the previous Board did not discuss the applicant’s Clemency Discharge.  The process that led to that discharge has no effect upon the underlying discharge and this Board has no authority over that Clemency discharge. 

5.  Notwithstanding the applicant’s medical complaints at the time of discharge he was found fit for separation [or retention].  Furthermore he was being separated under conditions that could result in discharge under other than honorable conditions and, absent the specific direction by the GCMA, he could not have been processed for disability separation.  The completion of a psychiatric evaluation tends to show that there was no basis for a finding that the applicant’s medical problems were a causative factor in his misconduct.  

6.  The document cited by counsel concerning a 15 year period to apply to this Board actually referred to the Discharge Review Board.  It made no reference to and had no applicability to this Board.

7.  The Board acknowledges that applicant’s Vietnam tour, including the combat service during which he was wounded.  However, the redeeming aspects of that service are outweighed by his egregious conduct during that same tour of duty.  His repeated misconduct; which resulted in repeated nonjudicial punishments, two court-martial convictions and 134 days lost time; necessitated his elimination processing while he was serving confinement in the stockade in Vietnam. 

8.   Prior to reaching a determination that it was not in the interest of justice to excuse the failure to timely file, the Board normally considers the entire file.  The Board considers the statute of limitations only after all other aspects had been considered and it had been concluded that there is no basis to recommend a correction of the records.  When the Board determines that an error or injustice exists, it routinely recommends relief in spite of a failure to submit the application within the 3-year time limit.  Although the decisional document does not state that the Board considered the merits of the case, the display of the pertinent details of applicant’s service record, the circumstances of the discharge and the regulation governing the discharge tends to show that it did.  The Board does not normally deny applications simply because they were not submitted within 3 years.  

9.   Furthermore, arguments about failure to timely file are moot, because this review of the entire case is a consideration of the merits.

10.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

11.  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.

NOTE:  The ARBA Support Division, St Louis is requested to administratively correct the applicant’s DD Form 214 to show award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__GDP__  ___EB_ _  __MVT __  DENY APPLICATION

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

INDEX

CASE ID	AR1999033349	
SUFFIX		
RECON		
DATE BOARDED	20000718	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19681229	
DISCHARGE AUTHORITY	AR 635-212    	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A92.01	
2.	A92.03	
3.	A92.07	
4.		
5.		
6.