MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 26 September 2002
         DOCKET NUMBER: AR2002072387

         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. Antoinette Farley		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Raymond J. Wagner		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: That his discharge be upgraded.

APPLICANT STATES: In essence, that he was charged with shirking his duties. He wanted to stay for another term of service, but was told it was time to go home. He further states that he pulled his weapon on his superior in order to stay and was in turn court-martialed. He adds that he needs medical attention from being in “Republic of Vietnam” and help with a home.

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

He enlisted in the Regular Army for 3 years on 17 October 1969. He
completed his military training and was awarded Military Occupational Specialty 63B20 (Wheel Vehicle Repairman). He was then transferred to Germany for duty.

The applicant's record shows repeated instances of military misconduct for which he received five nonjudicial punishments (NJPs) under the provisions of Article 15, Uniform Code of Military Justice, between 6 May 1970 and 23 August 1971. These offenses included: communicating a threat to a superior noncommissioned officer; twice, willfully disobeying a lawful command by a superior officer; possessing marijuana; participating in a breach of the peace by wrongfully shouting and chanting obscenities in a public place and leaving his appointed place of duty. His punishments included forfeitures of pay, restriction, extra duty and reduction from pay grade E-3 to pay grade E-1. He did not appeal the NJP actions.

On 21 October 1971, the applicant’s commander notified him of recommended separation under the provisions of Army Regulation 635-212, for unfitness. In the recommendation the commander cited numerous incidents of a discreditable nature with military authorities, and the unauthorized possession and use of marijuana.

On 22 October 1971, the applicant consulted with legal counsel. He acknowledged that he had been advised of the basis for the contemplated action and its effects, and his rights. He requested to appear before a board of officers and to be represented by counsel. He also stated that he understood the consequences of receiving a UD.

On 29 October 1971, the applicant’s medical and psychiatric evaluations described his behavior as passive aggressive. The reports certified that the applicant had no physical or mental defects sufficient to warrant separation from the service under provisions of AR 635-40A, (Separation for Physical Disability). The physicians found that the applicant was mentally responsible, both to distinguish right from wrong and to adhere to the right and cleared him for separation.
On 28 January 1972, the applicant, appeared, with counsel, before a board of officers. The board considered the applicant’s record, which shows no courts-martial on his current enlistment, five NJPs with one pending and testimony from the applicant’s platoon leader to the effect, that he would not care to have him back in the platoon. The battery commander testified that the applicant was an Indian and that he got along with him reasonably well, but that he would not want him back. The company first sergeant testified that the applicant had admitted using drugs and had stated his intention to continue to do so. The first sergeant considered him a bad influence. The former battery commander testified that the applicant was only the third individual he had recommended for elimination in approximately 18 months. The applicant’s section chiefs and assistant section chief testified in the applicant’s behalf. They had no complaints about his work or behavior. The applicant testified in his own behalf to the effect that he
was an Indian from an “unsettled family.” He had to join the Army or go to jail. He stated that he also had a bad temper and was easily “set off.” He turned
himself in for drugs to protect others from his driving. He did not like using drugs, but did so to relax and relieve the pressure. He testified to the effect that the NJPs were mostly unfair, that he had been provoked. He did not want to be discharged, because he would have to go to jail for 3 years. The board recommended that the applicant be separated with an undesirable discharge for unfitness.

On 15 March 1972, the separation authority approved the board’s recommen-dation and directed that he be discharged with a UD, under the provisions of Army Regulation 635-212, for unfitness.

On 11 April 1972, the applicant was transferred to Headquarters, US Army Personnel Center, Fort Dix, New Jersey and discharged under the provisions of Army Regulation 635-212, with a UD, by reason of unfitness. He had completed a total of 2 years, 5 months and 25 days period of active service.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel. Paragraph 6 of the regulation provided, in
pertinent part, 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 and an established pattern of shirking. 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’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would have jeopardized his rights. The characterization of service and the narrative reason for separation were appropriate considering all the facts of the case.

2. Evidence of record shows that the applicant served overseas duty in Germany from 4 April 1970 to 6 October 1972. There is no indication he was ever stationed in the Republic of Vietnam or was ever court-martialed.

3. 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.

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

___RVO __RJW ___KYF___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072387
SUFFIX
RECON
DATE BOARDED	2002.09.26
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1972-04-11
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	A51.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.
3.
4.
5.
6.