MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 July 2002
         DOCKET NUMBER: AR2002067677

         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
Mr. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. Thomas B. Redfern III		Member
Mr. Roger W. Able		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: In effect, that he be granted a general discharge due to medical problems.

APPLICANT STATES: He served his time and that he should also get the benefit of an upgrade just as other Vietnam era veterans got. He states that he has been diagnosed with paranoid schizophrenia and has been taking medication since 1985. He was tricked into signing for a bad discharge. He hopes he does not have to involve the National Association for the Advancement of Colored People (NAACP) or make a civil suit out of this case. He was a young man who was ignorant of what he was signing.

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

He enlisted on 7 December 1970 at the age of 18 years and 1 month and with 9 years of education. He completed training as a wheeled vehicle mechanic and was assigned to a permanent duty station.

The applicant received three nonjudicial punishments (NJPs) under Article 15, Uniform Code of Military Justice as follows:

         5 September 1971, for being absent from his appointed place of duty.

         27 January 1972, for disobeying a lawful order by driving on post with an unregistered car, speeding, having no driver's license and improper backing.

         19 December 1972, for a 2-day absence without leave (AWOL).

The report of a 4 May 1972 physical examination conducted for the purpose of "212" noted a diagnosis of aggressive behavior disorder.

He received two more NJPs as follows:

         28 June 1973, for a 3-day AWOL.

         26 July 1973, for willful disobedience by driving on post.

Psychiatric evaluations on 25 and 31 July 1973 produced a diagnosis of acute passive aggressive personality. The applicant was found to have no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. He was responsible for his actions, could both distinguish right from wrong and adhere to the right and he had the mental capacity to participate in board proceedings. He was cleared for administrative action as was deemed appropriate by the command.

The applicant received a sixth NJP on 14 August 1973 for using disrespectful language towards a warrant officer and failure to obey an order by driving on base.

On 20 August 1973, a separation physical examination found the applicant qualified for separation with a physical profile of 111111.

He received a seventh NJP on 4 September 1973 for two instances of absence from appointed place of duty.

The applicant's company commander submitted a 22 August 1973 recommendation that the applicant be discharged for unfitness because of frequent incidents of a discreditable nature.

A 31 August 1972 letter from the commanding general to a Member of Congress explained that the applicant had been counseled by his immediate commander concerning the documents required to substantiate a request for a hardship, but that the applicant had not obtained them. It also explained that the general discharge that the applicant had referred to was a proposal for elimination by the applicant's immediate commander but that proposal had been disapproved by the battalion commander who had determined that the applicant should be tried by court-martial.

On 7 September, 1972 a special court-martial (SPCM) convicted him, contrary to his pleas, of assaulting a staff sergeant, offering violence toward a second lieutenant and using disrespectful language toward the same second lieutenant. His sentence was comprised of confinement for 75 days and reduction to pay grade E-1.

On 20 September 1973, the applicant acknowledged that he had consulted with counsel concerning the proposed elimination for unfitness. He waived consideration of his case by a board of officers and representation by counsel and declined to submit a statement in his own behalf. He acknowledged that he understood the nature and consequences of both a general and an undesirable discharge.

The commanding general waived any further rehabilitation, approved the recommended elimination action, and directed separation with an undesirable discharge for unfitness.

On 23 October 1973, the applicant was separated under the provisions of Army Regulation 635-200, chapter 13. He had 2 years, 6 months and 8 days of creditable service and 132 days lost time.

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Army Regulation 635-212, in effect on 4 May 1972, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority. When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel. On 15 January 1973 Change 39 to the regulation incorporated, in chapter 13, the provisions for separation for unsuitability and unfitness that had previously been included in Army regulation 635-212. Paragraph 13-5(a)1 provided for the separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debts, failure to support dependents and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

On 7 November 1974 the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

The following is a summary of the post-Vietnam era discharge programs:

• Presidential Proclamation 4313
 
This proclamation was issued on 16 September 1974 by President Ford. It identified three categories of persons and permitted them to apply for a clemency discharge. Those categories were:
 
1) civilian fugitives who were draft evaders,
2) members of the military who were still AWOL, and
3) former military members who had been discharged
for desertion, AWOL or missing movement.
 
Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial. For those who elected to earn a clemency discharge (AWOL's and discharged members), they could be required to perform up to 24 months alternate service. Upon successful completion a clemency discharge would be issued.
 
• Presidential Memorandum of 19 January 1977
 
As he left office, President Ford extended his Vietnam Era Clemency Program to provide that approximately 700 deserters who had been wounded in Vietnam or who had earned an award for valor would have their discharges upgraded to under honorable conditions.
 • DOD Special Discharge Review Program
 
On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

• 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 either 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.
  
• Presidential Pardons
 
Under the Constitution, the President has the power to grant pardons for federal offenses. Although the pardon signifies forgiveness for the offense, it will
not expunge the record of conviction or change the nature of a discharge. It does not entitle an individual to VA benefits.
 
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. None of the post-Vietnam era programs applied to the applicant.

2. There is no supporting evidence to show that the applicant had either mental or physical health problems. Indeed, he was evaluated and found to be fully qualified for separation, free of mental defects and responsible for his own behavior.
3. Contrary to his assertion that he was tricked into signing a bad discharge, the record shows that an attorney counseled the applicant about the nature and consequences of the discharge he might receive.

4. Notwithstanding his assertion that he was too young and ignorant to understand what was happening, the applicant had demonstrated the capacity for honorable service by completion of training and approximately 10 months of active duty before the first discreditable incident of record.

5. The applicant probably was told that he would receive a general discharge when separation processing was started in April or May 1972, but that process was appropriately suspended, the applicant committed subsequent misconduct, and he was separated for a different reason under a different regulation.

6. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

7. 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.

8. 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___ __TBR__ __RWA __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067677
SUFFIX
RECON
DATE BOARDED	20020709
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19731023
DISCHARGE AUTHORITY	AR635-200, Ch 13
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	A51.00
2.
3.
4.
5.
6.