PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 September 2002
	DOCKET NUMBER:   AR2002076394

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                 records
	Exhibit B - Military Personnel Records (including
		      advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his discharge under other than honorable conditions (UOTHC) be upgraded and that his Report of Transfer or Discharge, DD Form 214, be corrected to reflect his correct foreign service.

3.  The applicant states that he spent time in Germany.  He feels that the fact he was given a bad discharge after having spent 10 months in Vietnam and doing his bad time was unjust.  He provides his DD Form 214 as supporting evidence.

4.  The applicant’s military records show that he enlisted in the Regular Army on 8 November 1966.  He completed basic training and advanced individual training and was awarded military occupational specialty 67A (Aircraft Mechanic).

5.  The applicant's Enlisted Qualification Record, DA Form 20, item 42 shows that he was arrested on 14 May 1967 by civil authorities while in an absent without leave (AWOL) status on a charge of larceny.  He was convicted and he opted for 30 days confinement.  He was released from civil confinement on or about 14 June 1967.

6.  Apparently, the applicant was in pre-trial confinement from 9 November through 13 December 1967.  On 14 December 1967, he was convicted of being AWOL from 1 July to on or about 3 November 1967.  He was sentenced to confinement at hard labor for 6 months (suspended until 5 July 1968) and to forfeit $60.00 pay for 6 months.  

7.  The applicant's DA Form 20, item 31 shows he departed enroute to Germany on 16 January 1968.

8.  Apparently, the applicant's suspended sentence to confinement was vacated. His DA Form 20, item 44 shows he was confined from 31 May - 9 July 1968.

9.  The applicant's DA Form 20, item 38 shows his unit transferred to Fort Lewis, WA on 16 July 1968.  Item 31 shows he departed enroute to Vietnam on 16 May 1969.

10.  Between August and November 1969, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on four occasions for being disrespectful in language and deportment toward his superior noncommissioned officer, for failing to go to his prescribed place of duty, for absenting himself from his appointed place of duty and failing to have an authorized pass in his possession, and for willfully disobeying a lawful order from his superior noncommissioned officer.

11.  On 25 October 1969, the applicant underwent a psychiatric evaluation.  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.

12.  On 15 November 1969, the company commander initiated separation action against the applicant under Army Regulation 635-212 for unfitness.  

13.  On 18 November 1969, the applicant was advised by counsel of the basis for the contemplated separation action.  He waived consideration of his case by a board of officers, waived personal appearance before such a board, elected not to make a statement on his behalf, and waived representation by counsel.

14.  On 26 November 1969, the applicant's commander formally recommended the applicant be separated for unfitness.  The commander cited the applicant's numerous Article 15s, five counseling sessions, his rehabilitative transfer from another unit, and his total indifference to his assigned duties, his fellow workers, and a rejection of authority.  The applicant had expressed the desire during counseling to get out of the Army and to have people stop telling him what to do. 

15.  On 1 December 1969, the applicant completed a separation physical and was found qualified for separation.  

16.  On 26 February 1970, the appropriate authority approved the recommendation and directed issuance of an Undesirable Discharge Certificate.

17.  The applicant's DA Form 20, item 38 shows he departed Vietnam enroute to the States on 4 March 1970.  It shows that his conduct and efficiency were both rated as unsatisfactory the entire time he served in Vietnam.

18.  On 18 March 1970, the applicant was discharged, with an undesirable, UOTHC discharge, in pay grade E-1, under the provisions of Army Regulation 635-212 for unfitness.  He had completed 2 years, 8 months, and 18 days of creditable active service and had 233 days of lost time.  He had served 4 months and 21 days in Germany (time in confinement not counted) and 9 months and 19 days in Vietnam for a total of 1 year, 2 months, and 10 days of foreign service.  His DD Form 214, item 22c shows he served in the U. S. Army Pacific (USARPAC) for 10 months and 7 days.  (His DD Form 214, item 30, which shows he served in Vietnam from 12 May 1969 - 18 March 1970, does not match the information entered on his DA Form 20.)

19.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness. Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier further effort was unlikely to succeed.

CONCLUSIONS:

1.  The applicant's DD Form 214, item 22c is incorrect.  He served in both the    U. S. Army Europe (USAREUR) and USARPAC for a total of 1 year, 2 months, and 10 days.

2.  Regarding the applicant's characterization of discharge, 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.

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.  The fact that he served his time in confinement does not mitigate his later misconduct.  It is noted that he served almost 10 months in Vietnam; however, his service was not honorable and both his conduct and his efficiency were rated as unsatisfactory the entire time he served there.  The characterization of his discharge as under other than honorable conditions was and still is appropriate.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That the applicant's DD Form 214, item 22c be corrected to show he served in USAREUR and USARPAC for 1 year, 2 months, and 10 days.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__FNE __  __ BJE  _  __WDB __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Fred N. Eichorn  _
		   CHAIRPERSON

INDEX

CASE ID	AR2002076394	
SUFFIX		
RECON		
DATE BOARDED	2002/09/10	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1970/03/18	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	A51.00	
BOARD DECISION	PARTIAL GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	100.00	
3.		
4.		
5.		
6.