MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            4 March 2003
	DOCKET NUMBER:   AR2002078245

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. William D. Powers		Member	
	Ms. Linda M. Barker		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 he served a tour in Vietnam and cannot understand why he cannot get his discharge upgraded when there are people who avoided the draft and were granted a pardon.  He further states that he was never informed of the impact his discharge would have on him in civilian life and states that he served his punishment for his court-martial and was given a bad discharge for the same offense.  He goes on to state that he desires a "de novo" review of his case for a more favorable decision.

COUNSEL CONTENDS:  That the applicant was totally unsuitable for military life and given the many recommendations for a general discharge rendered at his board hearing, the applicant should receive any benefit of the doubt.

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

He was inducted in Coral Gables, Florida, on 1 May 1967 and was transferred to Fort Jackson, South Carolina, to undergo his basic training.

On 9 June 1967, nonjudicial punishment (NJP) was imposed against him for dereliction of duty (failed to perform detail).  His punishment consisted of a forfeiture of pay, extra duty and restriction. 

On 20 July 1967, NJP was imposed against him for being absent without leave (AWOL) from 16 July to 19 July 1967.  His punishment consisted of extra duty and restriction.

He completed his basic training and was transferred to Fort Lee, Virginia, to undergo his advanced individual training (AIT) as a stock control and accounting specialist. 

On 8 September 1967, NJP was imposed against him for being AWOL from 5 September to 6 September 1967.  His punishment consisted of an oral reprimand, extra duty and restriction.

On 21 September 1967, NJP was imposed against him for three specifications of failure to go to his place of duty.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 28 September 1967, NJP was again imposed against him for three specifications of failure to go to his place of duty.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

The applicant completed his AIT and was transferred to Vietnam on 3 November 1967.  He was assigned to the 178th Supply Company and was advanced to the pay grade of E-3 on 14 November 1967.

On 21 November 1967, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 14 December 1967, NJP was imposed against him for failure to obey a lawful order from a superior noncommissioned officer.  His punishment consisted of extra duty and restriction.

On 28 December 1967, NJP was imposed against him for failure to obey a lawful order from his first sergeant.  His punishment consisted of a forfeiture of pay and extra duty.

He was convicted by a summary court-martial on 25 January 1968 of disobeying a lawful order from a senior noncommissioned officer.  He was sentenced to be reduced to the pay grade of E-1, a forfeiture of pay and to perform hard labor for 30 days.  He was reassigned to the 570th Supply Company on 21 February 1968.

He was convicted by a special court-martial on 29 March 1968 of being AWOL from 27 February to 14 March 1968.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of pay and reduction to the pay grade of E-1. 

The applicant's commander notified him on 28 July 1968 that he planned to initiate action to separate him from the service under the provisions of Army Regulation 635-212 for unfitness.  He advised him of his rights and explained to him that he could expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge. 

The applicant underwent a psychiatric evaluation on 14 August 1968 and was deemed to be mentally responsible, able to distinguish right from wrong and to adhere to the right and that he had the mental capacity to understand and participate in board proceedings.  He further opined that the applicant was not amenable to further rehabilitation and recommended that the applicant be administratively separated under the provisions of Army Regulation 635-212.

On 21 August 1968, the applicant's commander submitted a recommendation to discharge the applicant under the provisions of Army Regulation 635-212 for unfitness.  He cited the applicant's disciplinary record and his failure to respond to numerous counseling sessions and rehabilitation efforts as the basis for his recommendation.  He further explained that he had counseled the applicant on the adverse effects a discharge could have on him and the applicant had shown only contempt for all rehabilitation efforts.  He recommended an undesirable discharge be issued to the applicant.

On 29 September 1968, the applicant's counsel submitted a statement in which he indicated that he had counseled the applicant of the basis for his contemplated separation and its effect as well as his rights.  The applicant refused to sign acknowledgement that he had been counseled.  However, the applicant did sign a statement in which he agreed to waive his rights provided he received a general discharge (conditional waiver). 

On 4 October 1968, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of extra duty and restriction.

On 14 November 1968, NJP was imposed against him for two specifications of failure to go to his place of duty.  His punishment consisted of a forfeiture of pay and extra duty.

A board of officers convened at Long Binh Army Depot, Republic of Vietnam, on 25 November 1968, with the applicant present and represented by military counsel. 

The applicant's chain of command for the preceding 2 ½ months as well as the stockade administration officer and chaplain testified that they believed that the applicant deserved a general discharge.  They testified that he was not a bad person and that there were many who were worse.  They described him as being lazy, lacking ambition, shirking his duties, and bordering on malingering.

The applicant testified to the effect that he was between semesters at a junior college when he was drafted and he resented being drafted.  He went on to state that he did not want to be discharged from the Army with a bad discharge and that from the very beginning of his service he had encountered trouble getting along with his noncommissioned officers.

The board of officers found that the applicant was undesirable for further retention in the military service because of habits and traits of character manifested by repeated commission of petty offenses and habitual shirking.  The board also deemed that further rehabilitation was not possible and recommended that he be discharged for unfitness and issued an Undesirable Discharge Certificate.

The appropriate authority (a major general) approved the findings and recommendation of the board of officers on 14 December 1968 and directed that the applicant be issued an Undesirable Discharge Certificate.

Accordingly, the applicant was returned to Oakland Army Base, California, where his was discharged under other than honorable conditions on 24 December 1968, under the provisions of Army Regulation 635-212, for unfitness due to frequent involvement in incidents of a discreditable nature with civil and military authorities.  He had served 1 year, 7 months and 6 days of total active service and had 108 days of lost time due to AWOL and confinement.

He applied to the Army Discharge Review Board (ADRB) twice for an upgrade of his discharge to honorable.  On 24 June 1977 and 13 November 1981, the ADRB determined that he had been properly discharged and denied his appeals for a recharacterization of his discharge.

He applied to this Board on 6 December 1984 contending that his conduct was the result of the continued harassment and prejudice directed towards him and did not justify the discharge he received.  The Board determined that he had been properly discharged and voted unanimously to deny his request on 27 August 1986.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided, in pertinent part, that members who were involved in frequent incidents of a discreditable nature with civil and/or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

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 the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.

2.  Accordingly, the type of discharge and the reasons therefore were appropriate considering the facts of the case and his otherwise undistinguished record of service.

3.  The applicant’s contentions have been noted by the Board; however, they are not supported by either the evidence submitted with his application or the evidence of record.  Accordingly, after considering the circumstances of this case, there appears no basis to warrant an upgrade of his discharge.

4.  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.

5.  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

__rjw ___  __wdp___  ___lb ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002078245	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/03/04	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1968/12/24	
DISCHARGE AUTHORITY	AR635-212	
DISCHARGE REASON	UNFIT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  583	144.5000/A51.00	
2.		
3.		
4.		
5.		
6.