MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 September 2002
         DOCKET NUMBER: AR2002071838

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Barr		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 general discharge be upgraded to honorable.

APPLICANT STATES: In effect, that he previously requested an upgrade of his discharge in 1999 and just a couple of months ago he requested another copy of his General Discharge Certificate. However, he received a discharge certificate indicating that he had an honorable discharge; unfortunately, it was not accompanied by any letter of explanation; therefore, he is not sure that it is considered official. He further states that he joined the Army in 1967 and could not overcome the urge to do things his own way and be his own person. As a result, he was always in trouble, was fighting a lot, received his share on nonjudicial punishment (NJP) and was court-martialed on two occasions. He continues by stating that he was still sent to Vietnam, his troubles continued and he was court-martialed for something he contends was not his fault and sent to confinement, first in Vietnam and then to Hawaii. He goes on to state that after seeing all of the people who dodged the draft, protested the war and deserted get amnesty and pardons, he does not believe that it is unreasonable for him to request an upgrade of his discharge. In regards to the Honorable Discharge Certificate he received, he states that if his discharge was not upgraded and it was simply a mistake, he desires to know where to return it.

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

He enlisted with a moral waiver in Philadelphia, Pennsylvania, on 9 January 1967, for a period of 3 years and was transferred to Fort Bragg, North Carolina, to undergo his basic combat training (BCT). He successfully completed his BCT and was transferred to Fort Dix, New Jersey, on 17 March 1967. to undergo his advanced individual training (AIT) as a cook.

On 27 March 1967, NJP was imposed against him for being absent without leave (AWOL) from 26 March to 27 March 1967. His punishment consisted of a forfeiture of pay, restriction and extra duty.

He again went AWOL from 15 May to 17 May 1967 and NJP was imposed against him for the offense. His punishment consisted of a forfeiture of pay.

On 8 September 1967, he was convicted by a special court-martial of being absent without leave from 29 June to 25 July 1967. He was sentenced to a forfeiture of pay and restriction.

He was subsequently transferred to Fort Benning, Georgia; however, he went AWOL on 7 October 1967 and remained absent until he was apprehended by civil authorities in Philadelphia on 27 October 1967, and was returned to military control. On 15 November 1967, NJP was imposed against him for being AWOL from 7 October to 27 October 1967 and from 31 October to 1 November 1967. His punishment consisted of a forfeiture of pay, extra duty and restriction.
On 5 December 1967, NJP was imposed against him for disobeying a lawful order from a commissioned officer. His punishment consisted of a reduction to the pay grade of E-1.

He was transferred to Vietnam on 8 March 1968, for duty as a cook’s helper and was advanced to the pay grade of E-3 on 14 March 1968.

On 5 July 1968, he was convicted by a special court-martial of being disrespectful in language towards a superior commissioned officer and for striking and kicking another soldier in the face and ribs with his fists and feet. He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay. He was in confinement from 26 July to 5 December 1968.

On 10 December 1968, his commander submitted a recommendation to discharge him from the service under the provisions of Army Regulation 635-212 for unfitness because of habits and traits of character manifested by repeated periods of AWOL and acts of violence. He also indicated that the applicant’s only goal was to attain release from the service as soon as possible and that his behavior was not due to his incapacity to become a satisfactory soldier within the meaning of unsuitability. He recommended that the applicant be furnished an Undesirable Discharge Certificate.

After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

The appropriate authority (a brigadier general) approved the recommendation for discharge on 17 December 1968 and directed that he be furnished a General Discharge Certificate.

Accordingly, he was discharged under honorable conditions on 24 December 1968, under the provisions of Army Regulation 635-212 for unfitness. He had served 1 year, 3 months and 23 days of total active service and had 233 days of lost time due to AWOL and confinement.

A review of the available records fails to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations. Additionally, the staff of the Board finds no evidence to suggest that he previously applied to this Board for an upgrade of his discharge or that his discharge was ever upgraded.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. It provided, in pertinent part, that members who were involved in frequent incidents of a discreditable nature with civil and/or military authorities were subject to separation for unfitness. While a general discharge was authorized, 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’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.

2. Accordingly, the type of discharge and the reasons therefore were appropriate considering the facts of the case and his otherwise undistinguished record of service during such a short period of time.

3. The Board has noted the applicant’s contention that he was issued an Honorable Discharge Certificate; however, there is no evidence that such a certificate was in fact issued. Therefore, the applicant should contact the agency that issued the certificate to determine its validity.

4. After reviewing all of the available evidence in this case, the Board finds that the applicant’s record of service does not rise to the level of service warranting a fully honorable discharge.

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

___be___ __fe ____ ___wb___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002071838
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/10
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1968/12/24
DISCHARGE AUTHORITY	AR635-212
DISCHARGE REASON	UNFIT
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 583	144.5000/A51.00
2.
3.
4.
5.
6.