MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 08 AUGUST 2002
         DOCKET NUMBER: AR2002070972

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Lester Echols		Member
Ms. Margaret V. Thompson		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 under other than honorable conditions discharge be upgraded to a general discharge.

APPLICANT STATES: He is a Vietnam veteran who would like to have his undesirable discharge upgraded. He noted that it was his understanding that if he remained "out of trouble for more than 15 years" the discharge would be upgraded to one "under honorable conditions." He states he "never had a felony or Federal record before the Army or after." In support of his request he submits two lengthy, undated, self-authored statements in which he recounts his military service, the problems he encountered, the affects of psychological problems he had as a child on his ability to perform his military duties, and information regarding the extent of his medical ailments which have affected his ability to seek employment. He also submits one, undated, statement from an individual who has known him for "about 20 years…." The author notes that the applicant has a "few physiological problems" but is "a good person most of the time."

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

He was inducted and entered active duty on 17 January 1968, approximately 5 months shy of his 20^th birthday. The applicant had completed 9 years of formal education prior to being inducted. The applicant indicated on his entrance physical examination that he was in "fair" health but did note that he suffered from hay fever. He was found medically qualified for induction.

The applicant successfully completed basic and advanced individual training and received excellent conduct and efficiency ratings.

In June 1968 he was assigned to Vietnam as a cook with a medical clearing facility. Shortly after his arrival, on 27 July 1968, he was promoted to pay grade E-3.

However, between July 1968 and April 1969, the applicant was punished four times under Article 15 of the UCMJ (Uniform Code of Military Justice). His offenses included four incidents of failing to go to his appointed place of duty, failing to obey an order, and having an "unauthorized female" in his room. His punishments included reduction, forfeitures, and extra duty.

In May 1969 the applicant was convicted by a special court-martial of disrespect towards a commissioned officer, willfully disobeying a lawful order, assaulting another soldier, and assaulting an officer. His punishment included reduction to pay grade E-1, forfeiture, and 6 months confinement. The applicant was confined at a correctional holding detachment in Vietnam.

In June 1969 the correctional holding detachment commander initiated action to administratively separate the applicant from active duty under the provisions of Army Regulation 635-212, for unfitness. The commander cited the applicant's "repeated commission of court-martial offenses," and that he "habitually shirks his duties, has an overall disregard for military authority, and does not respond to rehabilitative efforts," as the basis for his recommendation. The applicant acknowledged receipt of the proposed separation action, consulted with counsel and waived his attendant rights. He did not submit any statements and acknowledged that as a result of "issuance of an undesirable discharge under conditions other than honorable" that he "may be ineligible for many or all benefits as a veteran under both Federal and States laws…."

A psychiatric evaluation, conducted on 17 June 1969, concluded that the applicant had a "Passive-Aggressive Personality" which was chronic, moderate, and manifested by "resistance to authority." The evaluating psychiatrist also noted that the applicant had a "severe lack of insight." The psychiatrist, however, concluded that the applicant met medical retention standards, was mentally responsible, able to distinguish right from wrong and to adhere to the right. He recommended the applicant be discharged under the provisions of Army Regulation 635-212.

The commander's recommendation was approved and on 10 July 1969 the applicant departed Vietnam enroute to the United States for separation processing. He was discharged under other than honorable conditions on
13 July 1969 and issued an Undesirable Discharge Certificate.

In September 1977 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel unfitness. It noted that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; or an established pattern of dishonorable failure to pay just debts. When separation for unfitness was warranted an undesirable discharge 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. The applicant has submitted neither probative evidence nor a convincing argument in support of his request. His contention that his childhood situation or problems he encountered while in the service somehow justified or excused his behavior is without foundation. His successful completion of training and promotion to pay grade E-3 clearly indicates that the applicant was capable of honorable service.

2. The Board also notes that during the applicant’s separation processing, he acknowledged that he might not be eligible for veteran benefits as a result of an undesirable discharge. As such, the evidence of record does not support his contention that he was told that his discharge would be upgraded if he remained "out of trouble for more than 15 years."

3. There is no evidence, and the applicant has not provided any, that his discharge was in error or unjust. He has submitted no evidence which would serve as a basis to upgrade his discharge as a matter of equity.

4. 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.

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

___RJW_ __LE____ __MVT __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070972
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020808
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.