MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 August 2000
	DOCKET NUMBER:   AR1999034215

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Allen L. Raub		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 a general discharge.

APPLICANT STATES:  That his discharge should be upgraded so he can be eligible to receive benefits through the Department of Veterans Affairs.

COUNSEL CONTENDS:  That the applicant was in a highly stressful military occupational specialty as he was on the firing line being shot at while taking care of the wounded.  Counsel contends that the applicant saw more wounded mangled bodies and although there was no one shooting at him, he had the added stress of being the only black assigned to the 67th Evacuation Hospital.  Counsel also states that the applicant had 15 months of honorable service prior to undergoing the pressure and stress of his job and that he ultimately snapped, resulting in assault charges being brought against him.  Counsel continues by stating that it is suspicious and a bit curious that all four of the statements that were submitted against the applicant regarding unauthorized absence charges were in the same format and written by three different people and that the unauthorized absence charges were not brought forth until the day after the assault charges were preferred against him.  Counsel states that the applicant’s due process rights were ignored and violated and that the applicant has no means to creditably refute the evidence against him, no matter how one sided it is.  Counsel requests that the applicant’s discharge be upgraded and that any doubt be resolved in his favor.

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

He was inducted in the Army on 5 January 1970 and he successfully completed his training as a medical corpsman.  He was promoted to the pay grade of E-2 on 5 May 1970 and he was transferred to Fort Benning, Georgia on 12 June 1970.

Nonjudicial punishment (NJP) was imposed against the applicant on 7 July 1970, for failure to go to his appointed place of duty.  His punishment consisted of a reduction in pay grade and a forfeiture of pay.

On 11 August 1970, NJP was imposed against him again for failure to go to his appointed place of duty.  His punishment consisted of a reduction in pay grade and a forfeiture of pay.

On 14 August 1970, NJP was imposed against him for failure to go to his appointed place of duty, disobeying a lawful order and for being disrespectful in language toward his superior NCO.  His punishment consisted of an oral reprimand.

On 18 September 1970, the applicant was transferred to the Republic of Vietnam.

Charges were preferred against the applicant and he was referred to trial by a special court-martial on 1 February 1971.  He was charged with striking a superior NCO in the face with his fist, striking a superior NCO in the left leg, disobeying a lawful order, being disrespectful in language toward his superior NCO and for two specifications of failure to go to his appointed place of duty.

On 21 February 1971, the applicant was notified that charges were pending against him for his acts of indicipline.  He acknowledged receipt of the notification and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.

On 1 March 1971, the applicant underwent a psychiatric evaluation and he was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right and to have the mental capacity to understand and participate in board proceedings.  He was cleared psychiatrically for administrative or judicial action.  The psychiatrist also determined that rehabilitative efforts probably would not be productive and that he had no disqualifying mental defects sufficient to warrant disposition through medical channels.

The request for discharge was approved by the appropriate authority on 19 March 1971.  Accordingly, on 30 March 1971, he was discharged under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  He had completed 1 year, 2 months and 26 days of total active service and he was furnished an Undesirable Discharge Certificate.

On 7 June 1972, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

On 11 June 1975, this Board denied the applicant’s request for an upgrade of his discharge.  A copy of the Board’s Memorandum of Consideration is unavailable for review.  Therefore, this Board is reviewing the applicant’s case de novo.

The ADRB denied his request for an upgrade of his discharge again on 30 June 1977.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized 
punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.  Counsel’s contentions have been noted by the Board; however, they are unsubstantiated by the evidence of record.  The record clearly shows that the  applicant had NJP imposed against him three times and charges were preferred against him for his numerous acts of indicipline.  Additionally, he underwent a psychiatric evaluation prior to his discharge and the psychiatrist determined that he had no disqualifying mental defects sufficient to warrant disposition through medical channels.  

4.  There is no evidence of racial discrimination or prejudice either before, or incident to, the altercations which gave rise to the applicant's offenses.

5.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

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

___gp___  __alr____  ___clg __  DENY APPLICATION

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

INDEX

CASE ID	AR1999034215	
SUFFIX		
RECON		
DATE BOARDED	2000/08/24	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/03/30	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  713	144.7110	
2.  716	144.7300	
3.  718	144.7500	
4.  725	144.7600	
5.		
6.