MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 February 2002
         DOCKET NUMBER: AR2001064297

         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. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Raymond J. Wagner		Member
Mr. Richard T. Dunbar		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 medical records be amended to reflect his stay in a German hospital for psychiatric treatment and that he receive back pay retroactive to his date of discharge.

APPLICANT STATES: That he was sent home on 20 days convalescent leave to Lawton, OK from a psychiatric hospital in Germany. While he was home on leave he got into trouble with the law and was sentenced to five years in a reformatory. He has been in over 15 mental institutions and is in one now. While in Vietnam he had a nervous breakdown, he was hospitalized for a few days and then placed under psychiatric care for about 3 months. He needs to obtain his Department of Veterans Affairs (VA) benefits. If the Fort Sill, OK stockade had checked, they would have found out he was being treated for psychiatric problems and he would have automatically had a medical discharge. He provides no supporting evidence.

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

He enlisted in the Regular Army on 30 April 1969. He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman). He completed basic airborne training. He arrived in Vietnam around November 1969 where he served as a rifleman and grenadier and where he earned two Army Commendation Medals, both with V device, and a Bronze Star Medal. He departed Vietnam on or about 4 November 1970 enroute to the U. S. Army Overseas Replacement Station, Fort Dix, NJ, with further assignment to Germany.

Orders on file show the applicant arrived at the 8^th Adjutant General Administration Company on or about 29 January 1971; he was assigned to Headquarters and Headquarters Company, 2d Battalion, 509^th Infantry on 14 February 1971; and he was reassigned to Company C, 2d Battalion, 509^th Infantry on 26 March 1971.

On 1 June 1971, the applicant was arrested by civilian authorities in Oklahoma. He was released to military control and placed in military confinement at Fort Sill, OK on 25 June 1971. An AWOL Interview Report indicated the applicant went AWOL because his first cousin died. The Red Cross was notified but they could not do anything since his cousin was not immediate family. The Army could have prevented his AWOL if they had given him leave to go to the funeral.

In June 1971, the Personnel Control Facility at Fort Sill, OK sent a message to Company B (sic), 2d Battalion, 509^th Infantry requesting disposition instructions on the applicant. If the applicant had been dropped from the rolls, they requested five copies of an Extract Copy of Morning Report, DA Form 188.

An Extract Copy of Morning Report, DA Form 188, dated 6 July 1971 shows the applicant departed absent without leave (AWOL) from Company B, 2d Battalion, 509^th Infantry on 14 May 1971 and dropped from the rolls on 15 June 1971.

On 14 July 1971, the applicant was convicted in District Court, Comanche County, Lawton, OK of armed robbery and sentenced to 5 years, suspended, with the special condition that he start drug rehabilitation within 90 days.

On 13 July 1971, the applicant’s commander initiated separation action under the provisions of Army Regulation 635-206 for misconduct, conviction by a civil court.

On 13 July 1971, the applicant waived consideration of his case by a board of officers, waived personal appearance before such a board, waived representation by counsel, and elected not to submit a statement in his own behalf.

The Army Discharge Review Board (ADRB) brief indicates the applicant received a separation physical on 14 July 1971, that he completed a mental status evaluation and no significant illness was revealed, and that he was qualified for separation.

On 22 July 1971, the appropriate authority approved the recommendation and directed the applicant receive an undesirable discharge.

On 27 July 1971, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-206 for civil conviction with an undesirable discharge. He had completed 2 years and 14 days of creditable active service and had 74 days of lost time.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.

On 4 February 1976, the ADRB upgraded the applicant’s discharge to a general discharge under honorable conditions and restored his rank to Specialist Four, E-4. The rationale behind the decision is not available.

The U. S. Total Army Personnel Command checked the Vietnam casualty roster and could not verify that the applicant had been hospitalized while in Vietnam.

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 notes that the applicant performed heroically in combat duties in Vietnam. However, no record could be found of his hospitalization for a nervous breakdown while in Vietnam. There is no record of his hospitalization while in Germany for psychiatric problems. Contrary to his contention that he returned to the States on convalescent leave, contemporary records show he departed AWOL to attend the funeral of a family member. The Personnel Control Facility at Fort Sill, OK had contacted his unit in Germany for disposition instructions. (The Board presumes the applicant had been transferred from Company C to Company B sometime between 26 March 1971 and 14 May 1971.) His unit in turn forwarded information showing the applicant had been reported AWOL and as dropped from the rolls.

3. Considering the verifiable circumstances of this case, the reason and authority for the applicant’s discharge were appropriate.

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

__jhl___ __rjw___ __rtd___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001064297
SUFFIX
RECON
DATE BOARDED	20020226
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	124.03
2.
3.
4.
5.
6.