MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 July l999                   
	DOCKET NUMBER:   AR1999017775

	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. Loren G. Harrell		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		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:  In effect, reconsideration of his request for upgrade of his undesirable discharge (UD) on 26 April l972 to an honorable discharge, which was denied by the Board on 28 August l974.  Since records reflecting the Board’s consideration at that time are no longer available, it is impossible to determine if the evidence and arguments now presented are new and different.  Therefore, the case is reviewed de novo.  

APPLICANT STATES:  In effect, in two applications, that while he was in the Republic of Vietnam (RVN), a psychiatrist offered him a “section eight” discharge, with a permanent partial disability which he refused due to the state of his mind.  He suffers from the after effects of Agent Orange, and was paid Social Security benefits from l994 to l998 due to his anti-social personality disorder which had gotten worse over time (no documentation submitted to support this issue).  He was discharged for being absent without leave (AWOL) after his 1-year tour in the RVN and he could not adjust to stateside duty.  He deserves veteran benefits.  He is currently in a state (Ohio) prison.  

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

He enlisted in the Regular Army (RA) on 21 l968 for 3 years.  He had 9 years of formal education.  His Armed Forces Qualification Test score was 20, Category IV.  He was to be trained in military occupation specialty (MOS) 76P (Stock Control and Accounting Specialist), but he failed this training and was retrained in MOS 76A (Supplyman).

He was assigned to the RVN on 24 July l969.  The highest rank he attained while in the RVN was specialist four, pay grade E-4.  There is no evidence of any medical treatment for a serious medical or mental condition or referral to any facility for the purpose of processing for a physical disability separation while in the RVN.  

He received two nonjudicial punishments (NJP) under the provision of Article l5, Uniform Code of Military Justice while in the RVN.  The first punishment was imposed on 14 February l970 for absenting himself from his unit for several hours, for misappropriating a military vehicle, for being involved in an accident with this vehicle and leaving the scene of the accident and for leaving a military vehicle unattended.  His punishment included reduction to pay grade E-3, to forfeiture $65 pay per month for 2 months and to perform extra duty for 45 days.  He did not appeal the punishment.

The second NJP was imposed on l7 July l970 for being drunk on duty as a sentinel and for discharging a firearm in a guard tower.  His punishment included reduction to pay grade E-2 and to forfeit $32 pay.  He did not appeal this punishment.  

On 23 July l970, the applicant departed the RVN and was assigned to Fort Carson, Colorado  for duties as a Rifleman, MOS 11B.  His record then shows a repetative period of AWOL from 5 October to 10 December l970, l9 December l970-22 February l971, 12 March-24 May l971, l3 June –7 August l971, 
23 November l971-11 February l972 and from 28 February-8 March l972.  In all cases, he was repeatedly assigned to Fort Knox, Kentucky, upon return to military control.  

On l7 February l972, he underwent a separation medical examination and was medically cleared for separation.  There is no mention of nor other evidence in his records that he was suffering from any effects of Agent Orange at the time of this examination.  

On 22 February, 4 March and 16 March 1972, the applicant was charged with six periods of AWOL between 5 October l970 and 8 March l972.  These charges could have resulted in a punitive discharge.

An investigation of the charges under Article 32, UCMJ, was conducted.  On 
29 March l972, the investigating officer recommended minor adjustment to the specifications; he noted that the applicant had voluntarily returned from AWOL to military control on all occasions, except one, which tended to show that he did not intend to desert; and that if he requested discharge under the provisions of chapter l0, Army Regulation 635-200, that it should be accepted.  

On 5 April l972, the applicant consulted with legal counsel and voluntarily requested discharge under the provisions of Chapter l0, Army Regulation 635-200, for the good of the service in lieu to trial by court-martial.  He and his counsel both attested that he had been fully briefed on his rights, that he knew that he could receive a UD and that it could adversely affect his veteran benefits.  He submitted a statement in his own behalf in which he related personal and family problems at home, and he also submitted several letters from his mother, friends, his pastor and the American Red Cross.  

His chain of command recommended approval and on 18 April l972, competent authority approved the discharge and directed separation with a UD.  He was to be reduced to the lowest enlisted rank.

On 26 April l972, the applicant was discharged with a UD, under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  He was credited with 2 years, 4 months and 12 days active service and was charged with 354 days lost time (271 days lost time prior to the expiration of his normal term of service, and 83 additional days after that date).  His awards and decorations include the Vietnam Service Medal and the RVN Campaign Medal w/60 Device.  

On 25 February l974, the Army Discharge Review Board denied the applicant’s request for upgrade of his discharge.

On 28 August l974, this Board denied a request for upgrade, but the documentation concerning the matters considered by that Board in reaching its decision is not available.

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 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.  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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  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.

3.  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.

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

5.  The applicant’s personal and family problems were unfortunate, however, the Board concluded that the applicant had other means within the military to resolve his problems without resorting to the repeated periods of AWOL.

6.  The applicant was medically cleared for separation and there is no indication that his exposure to Agent Orange was a causitive factor in his misconduct.  

7.  Determination of entitlement to veteran and state and/or federal social and disability  benefits rests, by law, with other federal or state agencies.  The applicant will have to continue to work with these agencies to determine his entitlement to future benefits.   

8.  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

___FNE_  __LEM___  ___MVT_  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999017775	
SUFFIX		
RECON	19740828	
DATE BOARDED	19990728	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19720426	
DISCHARGE AUTHORITY	AR 635-200, CH 10 	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	A01.13	
3.	A92.31	
4.	A93.09	
5.	A93.21	
6.	A94.07