MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 March 2002
         DOCKET NUMBER: AR2001065788

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Linda D. Simmons		Member
Mr. John T. Meixell		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 discharge under other than honorable conditions be upgraded.

APPLICANT STATES: That he feels he should have received a hardship discharge. He contends that he spent a tour of duty in Vietnam and was wounded in the back by mortar fire and sustained a gunshot wound to his left leg. He further states that he received two awards of the Purple Heart and the Combat Infantryman Badge for his distinguished combat service. He goes on to state that he received a sentence of time in the post stockade for assaulting an officer and that this assault was probably related to Post Traumatic Stress Disorder (PTSD). He contends that he went absent without leave (AWOL) because after his father’s death there was no one to care for his two younger sisters. He states that he currently has problems with his back, left leg, hearing, PTSD and diabetes which are related to his combat service in Vietnam. He also states that if his discharge is upgraded he could receive much needed care from the Veterans Administration (VA). In support of his application, he submits a personal statement, dated 22 October 2001; three character reference letters; a letter, dated 26 September 2001, from a physician treating the applicant for multiple medical problems; a letter, dated 6 September 2001, from a physician treating the applicant for clinical depression; and a letter, dated 10 September 2001, from his employer.

COUNSEL CONTENDS: The American Legion, as counsel for the applicant, invites the Board’s attention to the injustice raised by the applicant. Counsel opines that this submission, in conjunction with the official Army records, amply advance the applicant’s contentions and substantially reflect the probative facts needed for an equitable review. Accordingly, counsel rests on the evidence of record.

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

The applicant enlisted on 4 May 1965 for a period of 3 years. He served as a light weapons infantryman in the Dominican Republic from 1 November 1965 through 6 August 1966.

On 19 September 1966, the applicant was convicted by a summary court-martial of being AWOL from 25 August 1966 to 13 September 1966. He was sentenced to be reduced to E-3 and restriction for 60 days. On 19 September 1966, the convening authority approved the sentence.

On 19 October 1966, the applicant went AWOL and was apprehended by civil authorities on 9 December 1966 and returned to military control on 17 December 1966.

The applicant’s charge sheet is not contained in the available records.
On 25 January 1967, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he shall be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration. He acknowledged that he may be deprived of his rights and benefits as a veteran under both Federal and State law and that he may encounter substantial prejudice in civilian life by reason of an undesirable discharge. Additionally, the applicant elected not to make a statement on his own behalf.

On 2 February 1967, the applicant underwent a mental status evaluation and was diagnosed with passive aggressive personality, chronic, moderate, manifested by pouting, procrastination, stubbornness, and resentfulness. The psychiatrist determined that the applicant had no mental defects sufficient to warrant separation from the service under the provisions of Army Regulation 635-40A and Army Regulation 635-40B (Physical Evaluation for Retention, Separation, or Retirement for Physical Disability). The psychiatrist determined that the applicant was mentally responsible, both to distinguish right from wrong and to adhere to the right, and that the applicant had the mental capacity to understand and participate in board proceedings.

The intermediate commanders concurred with the applicant’s request for discharge and recommended that he be furnished an undesirable discharge.

On 6 February 1967, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge.

On 9 February 1967, the applicant underwent a separation physical examination and was found qualified for separation with a physical profile of 111111.

Accordingly, the applicant was discharged under other than honorable conditions on 13 February 1967 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served 1 year, 6 months and 24 days of total active service with 78 days of lost time due to AWOL and confinement.

There is no evidence in the applicant’s service personnel records which shows the applicant requested a hardship discharge.

There is no evidence in the applicant’s service personnel records which shows that he served in Vietnam.

The applicant’s DD Form 214 (Report of Transfer or Discharge) does not show any award of the Purple Heart. There is no evidence in the applicant’s service personnel records which show the applicant was wounded or treated for wounds as a result of hostile action. There are no orders for the Purple Heart in the applicant’s military records. Item 40 (Wounds) on the applicant’s DA Form 20 (Enlisted Qualification Record) is blank and item 41 (Awards and Decorations) on the DA Form 20 does not show entitlement to the Purple Heart.

The applicant’s DD Form 214 does not show the Combat Infantryman Badge as an authorized award. There are no orders for the Combat Infantryman Badge in the applicant’s service personnel records. Item 41 (Awards and Decorations) on the applicant’s DA Form 20 does not show entitlement to the Combat Infantryman Badge.

There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

Army Regulation 600-8-22 provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS. They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size. The Awards Branch of the Total Army Personnel Command has advised, in similar cases, that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

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 Board considered the applicant’s contention that he should have received a hardship discharge. However, there is no evidence of record available to the Board, and the applicant has provided no evidence, which shows that he requested a hardship discharge. Evidence of record shows that the applicant voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

2. The Board considered the applicant’s contention that he spent a tour of duty in Vietnam and was wounded in the back by mortar fire and sustained a gunshot wound to his left leg. However, there is no evidence of record, and the applicant has provided no evidence, to support this contention.

3. The applicant’s contention that he received two awards of the Purple Heart and the Combat Infantryman Badge for his distinguished combat service is not supported by the evidence of record.

4. The applicant’s contention that he received a sentence of time in the post stockade because he assaulted an officer was noted by the Board. However, there is no evidence of record available to the Board, and the applicant has provided no evidence, which shows he assaulted an officer or was punished for assaulting an officer.

5. The Board considered the applicant’s contention that the assault incident was probably related to PTSD. However, medical evidence of record shows that prior to the applicant’s separation he underwent a mental status evaluation and a separation physical examination and was found qualified for separation with a physical profile of 111111.

6. The Board noted the applicant’s contention that he needs his discharge upgraded to allow him entitlement to VA benefits for medical care. However, the Board does not grant relief solely for the purpose of obtaining medical benefits.
7. The Board reviewed the applicant’s brief record of service which included one summary court-martial conviction and 78 days lost and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. The Board also determined that his record of service was not satisfactory. Therefore, the applicant is not entitled to an honorable discharge or a general discharge.

8. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

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

10. 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.

11. 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____ LDS_____ JTM_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001065788
SUFFIX
RECON
DATE BOARDED	20020321
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19670213
DISCHARGE AUTHORITY	AR 635-200, Chapter 10
DISCHARGE REASON	For the good of the service
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.