MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 August 2000                   
	DOCKET NUMBER:   AR1999034701

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone 		Chairperson	
	Mr. Edwin S. Castle 		Member	
	Mr. Orville W. Troesch Jr. 		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 "Dishonorable Discharge" be upgraded to an Honorable Discharge [Note:  the applicant has a General Discharge (GD) which is not affirmed].

APPLICANT STATES:  That he is being denied medical benefits.  He fought in Vietnam, was injured in Vietnam, and has medals and decorations.  In support of his application, he provides a copy of his DD Form 214, Report of Separation From Active Duty.

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

He was inducted into the Army of the United States for 2 years on 9 June 1967.  He underwent Basic Combat Training (BCT) at Fort Leonard Wood, Missouri, from 15 June-12 August 1967.  During BCT, he was absent without proper authority (AWOL) from 6-7 August 1967 and accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice.  His conduct and efficiency ratings during BCT were "fair."

The applicant underwent Advanced Individual Training (AIT) at Fort Polk, Louisiana, from 14 August-13 October 1967.  His conduct and efficiency were rated as "excellent" and, upon completion of AIT, he was awarded military occupational specialty 11B (infantryman) and assigned to Vietnam.

The applicant arrived in Vietnam on/about 11 November 1967 and was assigned to the 199th Infantry Brigade where he proved himself to be a substandard soldier.  He was convicted by two special courts-martial.  On 19 April 1968, he was convicted of disrespect towards a superior commissioned officer and sentenced to confinement at hard labor for 3 months, forfeiture of $36 per month for 3 months, and reduction to private (E-1).  On 12 August 1968 while in the US Army Vietnam Stockade, he was convicted of possession of marijuana and sentenced to confinement at hard labor for 3 months, and forfeiture of $67 per month for 3 months.

During his tour of duty in Vietnam, the applicant was given emergency leave to return to the United States because his wife and daughter were ill.  He departed Vietnam on emergency leave on/about 14 November 1968 and was due to return on 12 December 1968.  He failed to return and was AWOL for 27 days before returning to military control.

He was returned to his unit in Vietnam and action was initiated to discharge him for unfitness under the provisions of Army Regulation 635-212.  Before the action could be completed, he was granted a second emergency leave because of the death of his daughter and departed on/about 1 March 1969 on permanent change of station (PCS)/emergency leave orders.  He was assigned to Fort Sheridan, Illinois, on 26 March 1969 following his emergency leave.
At Fort Sheridan, the separation action initiated by the 199th Infantry Brigade in Vietnam, was presented to the applicant and he was separated with an Undesirable Discharge (UD) on 1 May 1969.  He had 1 year, 4 months, and 22 days of creditable service and 180 days of lost time.

On 3 June 1977, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge for possible upgrading under the provisions of the Department of Defense (DOD) Discharge Review Program (Special), or SDRP.  The ADRB upgraded the applicant's UD to a GD.  On 13 April 1978, the ADRB reviewed the applicant's GD under the provisions of Public Law (PL) 95-126 and voted not to affirm the discharge.

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 an undesirable discharge, unless circumstances warranted a general or honorable discharge.  Service members discharged for unsuitability would be furnished an honorable or general discharge.

On 4 April 1977, the DOD implemented SDRP whereby the military services reviewed all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  In the absence of compelling reasons to the contrary, the program mandated a discharge upgrade to either honorable or general for any individual who:  had completed a normal tour of duty in Southeast Asia; had been wounded in action; had been awarded a military decoration other than a service medal; had received an honorable discharge from a previous period of service, or had a satisfactory record of military service at least 24 months prior to discharge.  Other factors in consideration of a discharge upgrade included possible personal problems which may have contributed to the acts which led to the discharge, as well as a record of good post-service citizenship since the time of discharge.

On 8 October 1977, the Congress enacted Public Law 95-126.  This legislation denied Department of Veterans Affairs (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The law required the DOD to establish historically consistent, uniform standards for discharge reviews and mandated reconsideration using these standards for all previously upgraded discharges under the SDRP and certain other programs.  Individuals whose SDRP upgraded discharges were not affirmed upon review were not entitled to VA benefits unless they had been entitled to such benefits before their SDRP review.

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 never received a "Dishonorable Discharge;" he received a UD for unfitness.  This was later upgraded to a GD under the DOD SDRP, but the GD was not affirmed under the provisions of PL 95-126.

3.  The applicant's record does not warrant either an upgrade of his GD to fully honorable or an affirming of the GD.

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

__jns___  __esc____  __owt___  DENY APPLICATION

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

INDEX

CASE ID	AR1999034701	
SUFFIX		
RECON		
DATE BOARDED	20000803	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19690501	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	A50.00	
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.