MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 August 2002
         DOCKET NUMBER: AR2002072717

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Regan K. Smith		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 general discharge under honorable conditions be upgraded to fully honorable. He also requests award of the Combat Infantryman Badge (CIB).

APPLICANT STATES: That he was given a general discharge after the accident wherein he shot and killed another soldier. He has constant dreams and nightmares about the accident and probably will have for the rest of his life but the Army does not care. He provides no supporting evidence.

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

He enlisted in the Regular Army on 27 January 1970. He completed basic combat training and advanced individual training and was awarded military occupational specialty 76A (Supply Clerk).

The applicant arrived in Vietnam and was assigned to Company B, 864^th Engineer Battalion on 14 June 1970 where he performed duties as a supply clerk.

On 23 October 1970, the applicant was convicted by a special court-martial of unlawfully killing a soldier by negligently shooting him in the chest with an M-16 rifle. He was sentenced to confinement at hard labor for 2 months, suspended, and to be reduced to pay grade E-1. (His Enlisted Qualification Record, DA Form 20, does not show that he was reduced.)

On 9 February 1971, the applicant received a psychiatric examination. He was diagnosed with passive dependent reaction, chronic and severe, shown by refusal to perform assigned duties and occasional use of marijuana. He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

On 10 February 1971, the applicant’s commander prepared a statement and certified that he counseled the applicant at length and determined that rehabilitation would serve no useful purpose to either the Army or the applicant. The applicant admitted that he had used marijuana on occasions. The applicant resented authority and openly displayed this resentment.

On 11 February 1971, the company commander initiated separation action under Army Regulation 635-212 for unsuitability due to the applicant’s failure to adjust to military life and personal problems manifested by his withdrawal from social life within the company following his accidental shooting of a fellow member of the company and subsequent court-martial.

On 11 February 1971, the applicant was advised by counsel of the basis for the contemplated separation action. He waived his right to consideration of his case by a board of officers, waived personal appearance before a board, and waived representation by counsel. He submitted no statement in his own behalf.

On 12 February 1971, the appropriate authority approved the request and directed the applicant be issued a General Discharge Certificate.

On 22 February 1971, the applicant was discharged, with a general discharge under honorable conditions. His Report of Transfer or Discharge, DD Form 214, shows his pay grade as E-3. He had completed 1 year and 25 days of creditable active service with no lost time.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. The regulation provided, in pertinent part, that members were subject to separation for unsuitability for inaptitude, character and behavior disorders, apathy (lack of appropriate interest), defective attitudes, an inability to expend effort constructively, alcoholism, and enuresis. A general under honorable conditions characterization of service was normally appropriate. Members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness. A discharge under other than honorable conditions was normally appropriate.

Army Regulation 635-200 was the general regulation governing the separation of enlisted personnel. In pertinent part, it stated that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. A general discharge is a separation from the Army under honorable conditions. It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

Army Regulation 600-8-22 prescribes Army policy and criteria concerning individual military awards. In pertinent part, it states that the CIB was established during World War II to provide special recognition of the unique role of the Army

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infantryman, the only soldier whose daily mission is to close with and destroy the enemy and to seize and hold terrain. The badge was intended as an inducement for individuals to join the infantry while serving as a morale booster for infantrymen. In developing the CIB, the War Department did not dismiss or ignore the contributions of other branches. Their vital contributions to the overall war effort were noted, but it was decided that other awards and decorations were sufficient to recognize their contributions. From the beginning, Army leadership have taken care to retain the badge for the unique purpose for which it was established. There are basically three requirements for award of the CIB. The soldier must be an infantryman satisfactorily performing infantry duties, must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and must actively participate in such ground combat.

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 applicant’s administrative separation was accomplished in compliance with regulations applicable at the time with the appropriate characterization of service. Considering the applicant’s admitted use of marijuana, his command could have separated him for unfitness. It appears his command did take into consideration the circumstances which resulted in his court-martial and his subsequent failure to readjust to military life and requested his separation for unsuitability instead.

3. The Board recognizes that the killing was an accident; however, the applicant’s subsequent behavior cannot be condoned and militates against upgrading his discharge to fully honorable.

4. The Board acknowledges the applicant’s service in Vietnam; however as he was not an infantryman, he did not meet the eligibility criteria for award of the CIB.

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

__SAC__ __MHM__ __RKS__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072717
SUFFIX
RECON
DATE BOARDED	2002/08/01
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1971/02/22
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	A40.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.