MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 December 2002
         DOCKET NUMBER: AR2002073082

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Powers		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 undesirable discharge (UD) be upgraded to a fully honorable discharge and that the narrative reason for separation be changed to physical disability.

APPLICANT STATES: That 11 years after he was discharged he was diagnosed by both the Veterans Administration (VA) hospital and a state mental hospital to be suffering from posttraumatic stress disorder (PTSD). He also states that he had a concussion of the head that was service related; that he was falsely imprisoned for 15 years and that he was released in March 2002; that while he was imprisoned, his legal rights were violated; and he was denied medical treatment and he has a $345.00 emergency medical room bill that he has no means to pay. He believes that due to his medical condition stemming from 1974; the fact that he went to war when he was under age and that he served in the military for 8.5 years; he is entitled to financial support from the Army; the VA and Social Security. The applicant submits in support of his request two letters written in his own behalf; his DD Forms 214 (Report of Separation from Active Duty) issued on 23 April 1969 and on 22 November 1974; a VA, physical disability rating, File Number 27-482-828/00, dated 4 May 1987, that shows he was rated 70% disabled for his nerves from 1 February 1987 up until 1 June
1987 and that from 1 June 1987 he was rated 50% disabled for his nerves. The applicant requests that this Board determine why there is no mention of his
30% physical disability rating from a prior period of service and why he has never been compensated for this disability along with his nervous condition.

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

That prior to the period of enlistment under review, he served honorably in the Regular Army from 20 June 1966-23 April 1969 and from 24 April 1969 until he was separated on 8 October 1971, determined to be 40% disabled and placed on the temporarily disability retired list (TDRL) with the rank of specialist fifth class, effective 9 October 1971. He received nine nonjudical punishments (NJP's) during these prior periods of enlistment. He served in Vietnam from 7 October
1967-6 October 1968 and from 12 March 1969-10 March 1970.

An Army Discharge Review Board (ADRB) Case Report, dated 17 January 1977, shows that on 5 October 1972, the applicant was found physically fit, removed from the TDRL and afforded the opportunity to reenlist. On 31 October 1972, the applicant reenlisted in the RA for 3 years and in the rank of specialist fifth class.

While assigned to Fort Jackson, South Carolina, on 23 January 1973, NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for unlawfully carrying a concealed weapon, a .25 caliber automatic pistol on 19 January 1973. His punishment included forfeiture of $100.00 pay per month for 2 months. On 20 March 1973, he was assigned to Okinawa, Japan.
On 19 September 1973, NJP was imposed against the applicant for writing $800.00 worth of dishonored checks at the Okinawa Regional Exchange. On 16 March 1974, NJP was imposed against the applicant for writing $470.00 worth of dishonored checks at the American Express Military Banking System. His punishment included a written letter of reprimand and 14 days of extra duty for each offense.

Between April 1973 and February 1974, the applicant was counseled on
11 separate occasions concerning his finances and writing worthless checks at the American Express and the Okinawa Regional Exchange with negative results. On 26 March 1974, the applicant received a bar to reenlistment as a result of his NJP's and his finances.

The 1977 ADRB Case Report also indicates that, in September 1973, the applicant was hospitalized due to an overdose of barbiturates. A line of duty investigation determined that the overdose was not in the line of duty and was due to the applicant's own misconduct.

The applicant's record does contain all of the facts and circumstances surrounding the discharge process. Evidence available indicates that civilian authorities in Japan convicted the applicant of illegal transfer and illegal administration of heroin in July 1974. He received a suspended sentence from the Japanese civilian court.

On an unknown date, the applicant was recommended for separation under the provisions of Army Regulation 635-200, due to civil conviction with a UD. The applicant's separation physical is not contained in the available record. The available record does not contain any medical evidence.

The applicant's record also contains a properly constituted DD Form 214 that was prepared and signed by the applicant at the time of separation. The applicant’s DD Form 214 shows that, on 22 November 1974, he was discharged under the provisions of Army Regulation 635-206, for conviction by a civil court with a UD. He had completed 2 years and 5 days of active military service on the enlistment under review and he had 17 days lost time. He had also completed
5 years, 3 months and 13 days on previous periods of enlistment.

On 17 January 1977, as a result of a record review, the ADRB denied the applicant’s request for an upgrade of his discharge. On 27 March 1980, the applicant personally appeared before the ADRB and he was again denied an upgrade of his discharge.

Army Regulation 635-206, then in effect, stated, in pertinent part, that an individual will be considered for discharge when an individual is initially convicted by civil authorities of an offense which involves moral turpitude, regardless of the sentence received or maximum punishment permissible under any code. At the time a UD was 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. There is no indication of procedural errors that would have jeopardized the applicant's rights. Conviction by civil authorities obligated military authorities to consider the applicant for discharge. Retention is normally only considered in exceptionally meritorious cases when clearly in the best interests of the Army.

3. The Board presumes administrative regularity and the applicant has provided no information that would indicate the contrary of his characterization of service nor his narrative reason for separation.

4. In October 1972, the applicant's 40% disability was resolved, he was found physically fit, removed from the TDRL and he returned to active duty the same month.

5. There is no evidence available to indicate that the applicant was physically unfit for separation, on 22 November 1974, and the applicant has provided no evidence to the contrary.

6. The Board noted that the applicant's 15-year period of incarceration was apparently due to a civil conviction that occurred well after he was separated from the military. As such, the Board has no comments on the applicant's allegations of mistreatment.

7. According to the VA rating that the applicant has submitted he was determined to be eligible for VA benefits due to a nerve condition, if the applicant believes that he is entitled to additional compensation, he should contact the VA.

8. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

9. 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

__lls___ __bje___ __wdp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073082
SUFFIX
RECON
DATE BOARDED	20021217
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19741122
DISCHARGE AUTHORITY	AR635-206
DISCHARGE REASON	A61.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.6100
2.
3.
4.
5.
6.