MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 May 2002
         DOCKET NUMBER: AR2002070208

         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. Judy Blanchard-Miller		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Mr. Lester Echols		Member
Ms. Karen Y. Fletcher		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 his undesirable discharge be upgraded.

APPLICANT STATES : No contentions submitted.

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

On 17 January 1966, the applicant enlisted in the Regular Army for 4 years. He completed the required training and was awarded military occupational specialty 11C10 (Infantryman Indirect Fire Crewman). The highest grade he achieved was pay grade E-5.

On 2 November 1967, while assigned to a unit in Germany, the applicant accepted nonjudicial punishment, under Article 15, Uniform Code of Military Justice, for failure to repair. His imposed punishment was a reduction to pay grade E-3 (suspended), a forfeiture of $28.00 pay, 14 days restriction and extra duty.

On an unknown date, the applicant voluntarily requested an assignment in Vietnam. He served in Vietnam from 20 April 1968 to 5 December 1969. He was awarded the Vietnam Service Medal (VSM), the Combat Infantryman Badge (CIB) and the Republic of Vietnam Campaign Medal (RVNCM), for his service in Vietnam.

On 6 December 1968, the applicant was reported for being absent without leave (AWOL). Military authorities apprehended him on 16 February 1969.

On 9 April 1969, the applicant was convicted by a special court-martial (SPCM) of being AWOL from 6 December 1968 to 15 February 1969. He was sentenced to a reduction to pay grade E-3.

On 25 February 1969, the applicant was transferred to Fort Knox, Kentucky and placed in military confinement. When he was counseled on 25 March 1969, the applicant requested that he be returned to duty. On 1 April 1969, the applicant's request was granted. On 15 April 1969, the applicant was reported for being AWOL. He was returned to military control on 12 December 1969.

On 7 January 1970, a Report of Medical Examination found the applicant physically fit for retention.

On 13 January 1970, the applicant was referred to a Mental Hygiene Consultation Service, for an evaluation for separation under the provisions of Army Regulation 635-212. He was found mentally responsible and able to distinguish right from wrong. He had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. He was considered mentally competent to participate in board proceedings.
On 16 January 1970, the applicant was convicted by a SPCM of being AWOL from 15 April to 11 December 1969. He was sentenced to confinement at hard labor for 6 months, a forfeiture of $80.00 pay per month for 6 months and a reduction to pay grade E-1.

On 20 January 1970, the applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him. He waived consideration, personal appearance, and representation before a board of officers.

On 22 January 1970, the company commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212, for unfitness. The commander’s recommendation was based on the applicant’s frequent incidents of a discreditable nature with military authorities.

On 30 January 1970, the Commanding General approved the recommendation, waived further rehabilitation requirements and directed the issuance of a discharge under the provisions of Army Regulation 635-212, for unfitness with an Undesirable Discharge Certificate.

On 5 February 1970, the applicant was discharged in pay grade E-1, under the provisions of Army Regulation 635-212, for unfitness with an Undesirable Discharge Certificate. He had completed 2 years, 11 months and 5 days of creditable active service and 399 days lost.

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. A discharge UOTHC 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 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.

3. Therefore the type of discharge directed and the reasons were appropriate considering all the facts of the case.

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

__ mdm ___ __ le ____ __ kyf ___ DENY APPLICATION



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

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INDEX

CASE ID	AR2002070208
SUFFIX
RECON
DATE BOARDED	20020523
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19700205
DISCHARGE AUTHORITY	AR635-212 . . . . .
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5000
2.
3.
4.
5.
6.