MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 August 2002
         DOCKET NUMBER: AR2002075141

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Irene N. Wheelwright		Member
Mr. Jose A. Martinez		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 undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES: In effect, that after completing a combat tour in the Republic of Vietnam (RVN), he was stationed at Fort Hood, Texas, where he was unable to function. He claims that he was a totally different person after returning from the RVN. He began experiencing nightmares about being on the front lines. He states that having these nightmares made living each day a challenge, and resulted in his making the poor choice to abuse alcohol. He admits that he used someone else’s credit card without their permission and to forging their signature to purchase fuel for his automobile. He indicates that he understands that these actions were illegal and should not have happened. However, he contends that his state of mind at the time was not normal, and he did very stupid things. He also comments that he could not sleep without having nightmares of his war experiences, and that he felt he could trust nobody. He also claims that he stayed to himself and was very depressed as a result of seeing so many of his friends killed in the RVN. In addition, he indicates that he felt that he was cheating because he had not been one of those killed. He also states that he is being treated by a psychiatrist at a Department of Veterans Affairs (DVA) medical facility and as a result, he now understands that his actions were caused by his mental health condition, which was related to his service in the RVN.

EVIDENCE OF RECORD: The applicant's military records were not available to the Board for review. However, some disciplinary records and parts of his separation processing file were provided by the DVA. In addition, a copy of his separation document (DD Form 214) was also available to the Board during its review of this case.

The applicant served a total of 6 years and 11 days of active military service. The period of enlistment under review covers the period 27 January 1965 through 28 February 1968. During this enlistment period, he completed a total of 2 years, 2 months, and 6 days of creditable active military service, and he accrued 325 days of time lost due to being absent without leave (AWOL) and in confinement.

The available evidence documents an extensive disciplinary history on the applicant during the enlistment under review. Special Orders Number 151, issued by Headquarters Committee Group, Fort Polk, Louisiana, directed the applicant’s reduction from specialist four/E-4 to private first class/E-3, effective
10 October 1966, due to his own misconduct. In addition, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated: 9 September 1966, for being AWOL from on or about 6 to on or about 9 September 1966; and on 29 July 1967, for being AWOL from on or about 24 to on or about 26 July 1967.
On 14 March 1967 he was convicted by a special court-martial of being AWOL from on or about 26 to on or about 31 October 1966; and from on or about
31 October 1966 to on or about 16 February 1967. His sentence included confinement at hard labor for three months, and a forfeiture of $80.00 per month for three months.

On 6 April 1967, the applicant was tried in the 54^th District Court of McLennan County, Texas, and was adjudged guilty of forgery. In September 1967, he was imprisoned in the State penitentiary for a term of not less than 2 years nor more than 3 years.

On 27 January 1968, a board of officers convened for the purpose of determining if the applicant should be discharged from the Army prior to his normal expiration of term of service. This consideration was necessary based on his being convicted by a civil court and sentenced to imprisonment. The Board found that the applicant was undesirable for further retention in the military service because of his conviction by a civil court. It also recommended that he be discharged from the service because of misconduct (conviction by a civil court) and that he receive an UD.

The DD Form 214 issued to the applicant on the date of his separation confirms that he was undesirably discharged on 28 February 1968, in the rank of private/E-1. It also shows that he served in the RVN for 11 months and 23 days, and that during his active duty tenure he earned the following awards: Vietnam Service Medal; Republic of Vietnam Campaign Medal; and Sharpshooter Marksmanship Badge (Rifle).

There is no evidence to show the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within the 15 year statute of limitations.

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 Board notes the applicant’s contention that a mental condition he suffered as a result of his combat service in the RVN impaired his ability to serve and contributed to his misconduct. However, even if this factor is true, lacking specific evidence to show that this condition was so serious that it prevented him from distinguishing right from wrong and adhering to the right, the Board finds it is not sufficiently mitigating to warrant the requested relief.

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2. The available evidence confirms that the applicant had an extensive disciplinary history of military infractions prior to the civil conviction that ultimately led to his discharge. Further, there is no evidence to show that his combat service was performed under any extraordinarily harsh conditions or that he earned any valor awards during this combat service that would warrant it mitigating the serious misconduct that led to his discharge.

3. The applicant’s service records were not available to the Board, and there was no information available on his over three years of prior active service performed prior to the enlistment under review. However, it is clear that he would have received a DD Form 214 documenting this 3 years, 10 months, and 5 days of prior active service. This separation document may still be used by the applicant to confirm this period of honorable service when it is necessary or appropriate.

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

__JNS __ __INW __ __JAM __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075141
SUFFIX
RECON
DATE BOARDED	2002/08/15
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1968/02/28
DISCHARGE AUTHORITY	AR 635-206
DISCHARGE REASON	Civil Conviction
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.