MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 August 2003
	DOCKET NUMBER:   AR2002082833

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Ronald J. Weaver		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 under other than honorable condition (UOTHC) discharge be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  That the Department of Veterans Affairs (VA) is denying him benefits due to his UOTHC discharge.  He states that he served his time in jail for what he did and feels that was enough punishment.  He submits a letter, dated 7 October 2002, from the VA denying his request for VA benefits and a statement in his own behalf, dated 3 January 2003, in which he contends he suffers from post traumatic stress disorder (PTSD) and depression, and this may have caused his problems in the military.  He also states that he does not remember the circumstances of why he served time in Jail.

COUNSEL CONTENDS:  In effect, that the applicant's Official Military Personnel File supports a review of his contentions as put forth in his DD Form 149 (Application for Correction of Military Records) and that counsel rests on the evidence of the case.  

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

After being given the choice of joining the Army or going to jail, he enlisted in the Regular Army on 3 May 1968 for a period of 3 years.  He was trained in military occupational specialty (MOS) 51B, Carpenter, and was assigned to the Republic of Vietnam.  He served in Vietnam from 23 September 1968 until 28 July 1969.

On 8 February 1969, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for disobeying a lawful order from a superior noncommissioned officer (NCO).  His punishment consisted of reduction to the grade of private/E-2 (suspended for 2 months).  On 27 February 1969, the suspended sentence was vacated.

On 2 March 1969, the applicant accepted NJP for cutting a Vietnamese housemaid with a knife.  His punishment consisted of reduction to the grade of private/E-1, forfeiture of $58.00 pay, and 21 days’ restriction and extra duty.

On 3 May 1969, the applicant was convicted by a special court-martial of failing to go to his place of duty, failing to obtain a pass before going to the Saigon area, possessing marijuana on two separate occasions, and possessing another person's ration card.  He was sentenced to forfeiture of $73.00 per month for 6 months and confinement at hard labor for 4 months (suspended for 6 months).

On 5 July 1969, the applicant was notified that his chain of command was planning to initiate separation action against him and was advised of his rights.  

On 8 July 1969, the applicant was counseled.  He waived his rights to a board of officers and elected not to submit a statement in his own behalf.

On 14 July 1969, a psychiatrist evaluated the applicant.  It was noted that the applicant had been unable to adjust to the Army and was unsuitable for further retention.  He was diagnosed with a "schizoid personality, chronic, severe, manifested by suspiciousness and seclusiveness."  The applicant's condition was found not in the line of duty and not due to his own misconduct and to have existed prior to service (EPTS).

On 17 July 1969, the unit commander recommended that the applicant be discharged under the provisions of Army Regulation 635-212 by reason of misconduct – frequent incidents, with a UD.  The unit commander noted that the applicant had been counseled on numerous occasions, but had failed to conform to the requested changes.  The chain of command concurred with the unit commander and recommended discharge with a UD.

On 25 July 1969, the appropriate authority approved the applicant's discharge with a UD.  Accordingly, on 1 August 1969, the applicant was discharged from the Army after completing 1 year, 1 month, and 5 days of active military service and accruing 54 days of lost time.

On 5 December 1980, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 9 March 1982, the ADRB denied the applicant's request for an upgrade of his discharge.

Army Regulation 635-212, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil 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 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 Board noted the arguments put forth by the applicant and his counsel; however, the evidence of record does not support those arguments and the applicant has not provided any corroborating evidence to support them.  

3.  The evidence of record does not support the applicant's contention that he was suffering from PTSD when he committed his many acts of misconduct while serving in the Army. 

4.  Eligibility for veteran's benefits does not fall within the purview of this Board.  The VA has its own system of determining whether a soldier qualifies for VA benefits that is separate and distinct from the Army.

5.  The evidence of record shows that the applicant's chain of command tried to assist him with adjusting to Army life through counseling and the imposition of nonjudicial and judicial punishment.  The applicant failed to respond appropriately; thereby, leaving his chain of command no choice, but to separate him from the service. 

6.  The applicant's discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  

7.  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

__lls___  __clg___  __rjw___  DENY APPLICATION

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

INDEX

CASE ID	AR2002082833	
SUFFIX		
RECON		
DATE BOARDED	20030805	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19690801	
DISCHARGE AUTHORITY	AR 635-212.  .  .  .  .  	
DISCHARGE REASON	A60.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.