MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          19 June 2003
	DOCKET NUMBER:  AR2002079682

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. William D. Powers		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:  Reconsideration of her earlier appeal to correct the records of her deceased husband, hereinafter referred to as the FSM (former servicemember), by upgrading his undesirable discharge to an honorable or medical discharge.

APPLICANT STATES:  In effect, that she is requesting that the FSM's case be reevaluated on the basis of equity under “Category G” of the Special Standards put forth in Giles v. Secretary of the Army (Civil Action Number 77-0904).  She states that since the Army is now more accepting of the fact that some soldiers who served in combat suffer from Post Traumatic Stress Disorder (PTSD), it is possible the FSM suffered from PTSD.  She states she seeks justice and cannot rest until she finds it.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AC97-11221) on 1 April 1998.

The applicant submits a statement detailing her contentions and a copy of a newspaper article indicating that military doctors are paying closer attention to the mental health of American troops in Afghanistan.  Her contentions are new argument that require Board consideration.

The FSM enlisted in the Regular Army (RA) on 19 January 1968 for a period of 2 years.  Trained as an artilleryman, he served in Vietnam from 20 June 1968 to 17 June 1969 with Battery B, 6th Battalion 29th Artillery, 4th Infantry Division.

On 23 July 1969, the FSM was reassigned to Battery C, 3rd Battalion, 30th Artillery, Fort Sill, Oklahoma.  On 30 December 1969, he appeared before the United States District Court for the Western District of Oklahoma where he pled guilty to theft of Government property.  In accordance with his plea, he was found guilty and placed on 2 years' probation.  Following his conviction, the FSM's chain of command initiated administrative separation action under the provisions of Army Regulation 635-206 for a civil court conviction.  The administrative separation action was approved and the FSM was separated with an Undesirable Discharge (UD) on 11 February 1970.

The Special Standards Provision referenced above by the applicant states that, pursuant to the 27 November 1979 order of the United States District Court for the District of Columbia in Giles v. Secretary of the Army (Civil Action No. 77-0904), a former Army soldier is entitled to an honorable discharge if a less than honorable discharge was issued to the soldier on or before 27 November 1979 in an administrative proceeding in which the Army introduced evidence developed by or as a direct or indirect result of compelled urinalysis testing administered for 

the purpose of identifying drug abusers (either for the purposes of entry into a treatment program or to monitor progress through rehabilitation or follow-up).  Applicants who believed that they fell within the scope of this provision were told to place the term 'CATEGORY G' in block 11b of DD Form 149 (Application for Correction of Military Record).

Army Regulation 15-185 sets forth the policy and procedures for this Board.  It provides that, if a request for a reconsideration is received within 1 year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including, but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

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 Special Standards Provision found in the 27 November 1979 order of the United States District Court for the District of Columbia in Giles v. Secretary of the Army is not applicable to the applicant's case.  The FSM was separated by reason of a civil court conviction, not as a direct or indirect result of compelled urinalysis testing administered for the purpose of identifying drug abusers.
 
2.  The applicant has provided no evidence that the FSM suffered from PTSD or that his civil court conviction for theft was somehow related to his Vietnam service.

3.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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___  __lem___  __wdp___  DENY APPLICATION

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

INDEX

CASE ID	AR2002079682	
SUFFIX		
RECON		
DATE BOARDED	20030619	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19700211	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.