MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 January 1999
         DOCKET NUMBER: AC97-09470
                                    AR1998011427

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. James E. Vick		Chairperson
Ms. Margaret K. Patterson		Member
Mr. John H. Kern		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)

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APPLICANT REQUESTS: That his general discharge under the Special Discharge Review Program (SDRP) be upgraded to honorable.

APPLICANT STATES: In effect, that he suffered “racial/institutional” discrimination, suffered from “Vietnam Syndrome” and the discharge was too harsh for the offenses he committed. He contends he had a chance to go back to duty for 11 months but he was not mentally stable so he took the undesirable discharge. He also contends he did not have any counseling.

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

He enlisted on 29 July 1966 for a period of 3 years. He successfully completed his training and was transferred to Germany for duty as an armament maintenance specialist. Shortly thereafter, he volunteered for assignment in Vietnam and served from August 1967 to February 1969.

On 19 June 1967 nonjudicial punishment was imposed against the applicant for being AWOL and possessing an unauthorized pass. His punishment consisted of a reduction to E-2 and 14 days of extra duty and restriction.

While serving in Vietnam, the applicant was convicted by special court-martial (SPCM) on 23 April 1968 of violating a lawful general regulation and unlawfully carrying a concealed weapon. His punishment consisted of confinement for
3 months and a forfeiture of pay. The convening authority approved the sentence on 18 May 1968.

On 14 October 1968, while serving in Vietnam, he was convicted by SPCM of disobeying a lawful command from a superior commissioned officer (SCO) and disobeying a lawful order from a superior noncommissioned officer (NCO). His punishment consisted of hard labor without confinement for 3 months and a forfeiture of pay. The convening authority approved the sentence on 24 October 1968.

He was again convicted by SPCM on 27 January 1969 of being AWOL (two specifications), being disrespectful toward his SCO and using disrespectful language toward a superior NCO. His punishment consisted of confinement for
6 months and a forfeiture of pay. The convening authority approved the sentence on 28 January 1969.

On 17 February 1969 the applicant was convicted by SPCM for failing to obey a lawful command from his SCO, unlawfully striking a first sergeant and being disrespectful toward his SCO. His punishment consisted of confinement for
6 months and a forfeiture of pay. The convening authority approved the sentence on 20 February 1969.

On 12 November 1969 the applicant’s commander submitted a recommendation to discharge the applicant from the service under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. He cited as the basis for his recommendation the applicant’s extensive disciplinary record, unsatisfactory confinement record and his negative attitude toward further military duty.

He underwent a mental status evaluation on 10 June 1969 and a medical examination on 26 August 1969 and was cleared for administrative separation by both examinations.

The applicant declined the opportunity of requesting counsel and waived his right to a hearing before a board of officers. He also elected not to make a statement in his own behalf.

The appropriate authority approved the recommendation for elimination on
18 November 1969 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on
28 November 1969 under the provisions of Army Regulation 635-212. He had served 2 years, 2 months and 26 days of total active service and had 395 days lost time due to AWOL and confinement.

On 3 February 1972 the Army Discharge Review Board (ADRB) denied his request to upgrade his discharge.

On 5 May 1977 the applicant applied to the Special Discharge Review Board (SDRP) for an upgrade. The SDRP determined that the applicant did not meet the criteria of the program and denied relief on 11 July 1977.

On 19 September 1977, the applicant’s discharge was upgraded to general under the SDRP. The Board found insufficient evidence of racial discrimination; however, determined that the applicant’s satisfactory completion of Southeast Asia tour and good citizenship met the qualifications for recharacterization of service under the SDRP. Also, the majority of the Board determined that the applicant’s personality disorder (diagnosed as an anti-social personality by a qualified psychiatrist) was sufficient to warrant his discharge for unsuitability. On 24 May 1978, as required by Public Law 95-126, the ADRB again reviewed the applicant’s case and voted not to further change the SDRP discharge.

On 28 September 1983 the ADRB denied his request to upgrade his discharge to honorable.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a(1) 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.

The Special Discharge Review Program, often referred to as the “Carter Program”, was announced on 29 March 1977. The program mandated upgrade of administrative discharges if the applicant met one of seven specified criteria.

Public law 95-126. This law, enacted on 8 October 1977, provided generally, that no VA benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the DOD Special Discharge Review Program. It required the establishment of uniform published standards which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases. The services were then required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases where the case met those standards.

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 contentions of the applicant were noted by the Board. However, they are not supported by either evidence submitted with the application or the evidence of record. 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.

2. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3. The applicant’s discharge was upgraded to general under the SDRP on
19 September 1977.

4. In view of the applicant’s numerous acts of indiscipline, it does not appear that his discharge under honorable conditions was too severe.

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

__jev____ _mkp ___ __jhk ___ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC97-09470/AR1998011427
SUFFIX
RECON
DATE BOARDED	1999/01/27
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1969/11/28
DISCHARGE AUTHORITY	AR635-212
DISCHARGE REASON	Unfitness
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. A51.00
2.
3.
4.
5.
6.