MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 December 2002
         DOCKET NUMBER: AR2002076102

         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. Luther L. Santiful		Chairperson
Mr. William D. Powers		Member
Ms. Barbara J. Ellis		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 essence, that DD Form 214 (Report of Transfer or Discharge) be changed to reflect an honorable discharge.

APPLICANT STATES: In effect, through the Seward County Veterans Services Representative, that he wants his discharge to be upgraded and that his lost time be expunged or reduced to less than 180 days. He states that he is awaiting treatment with the Veterans Administration (VA) for medical conditions that he received while in the Republic of Vietnam (RVN), i.e., Agent Orange, Post Traumatic Stress Disorder (PTSD) and general medical care. In support of his case he submits a copy of the Department of Veteran’s Affairs Liberal Primary Care Clinic Consultation Sheet dated 11 June 2002, with a copy of his letter summary as an enclosure dated 6 August 2002 and a copy of his DD Form
214 dated 22 May 1970.

COUNSEL CONTENDS: Upon reviewing the applicant’s summary of military service and personal interview with him, he acknowledges that other military personnel also have found themselves in the applicant’s circumstance. He adds that these events often occur upon military returning to the United States after combat service, subsequently ending in discharge. He contends that the applicant thought he received a general discharge and had also accepted his non-judicial “procedures.” He further contends that after the applicant received his DD Form 214, he put it away giving it no thought until now. He adds that the applicant has presently discovered due to lost time and the less than honorable characterization discharge, he is unable to receive benefits he is in need of. He states that the applicant’s apparent inequities exist in his loss of access to benefits when compared to many others in essentially the same circumstances given his time served in combat, his 6 month extension in the RVN and his duty as a helicopter door gunner. Therefore, counsel states in light of the present day, the applicant understands his later actions, after returning to the United States, may well have indicated a need for treatment or therapy regardless of his incarceration status. Therefore, counsel supports the applicant’s wishes in requesting that his discharge be upgraded to general and that his lost time be expunged or reduced to less than 180 days

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

On 10 June 1966, he enlisted in the Regular Army for 3 years. He completed training in military occupational specialty (MOS) 71B (Typist).

On 28 November 1966, the applicant was convicted by a special court-martial (SPCM), of one specification of being absent without leave (AWOL) from 1 to
14 November 1966. He was sentenced to confinement at hard labor for 30 days, (suspended for 6 months) and forfeiture of $30.00 pay.


On 15 March 1967, he was transferred to the RVN for duty.

On 5 August 1967, non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for absence from his place of duty to wit: Consolidated Mess Hall on
4 August 1967. His punishment included forfeiture of $28.00 pay and 14 days extra duty.

On 13 December 1967, he received his second NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for missing curfew and possession of pornographic photographs in violation of a lawful order. His punishment included reduction to pay grade E-1, forfeiture of $25.00 pay and
14 days extra duty.

His DA Form 20 (Enlisted Qualification Record) shows that while in the RVN he served as a door gunner from 6 May to 13 July 1968 and was advanced to pay grade E-4 on 20 September 1968.

On 29 October 1968, he returned to the United States and was assigned to Fort Polk, Louisiana for duty as a Drill Sergeant.

On 28 February 1969, he was convicted by a summary court-martial of being AWOL from 17 to 25 February 1969. He was sentenced to confinement to hard labor for 30 days (suspended for 6 months), forfeiture of $90.00 pay and reduction to pay grade E-1. On 10 June 1969, the sentence was vacated and the unexecuted portion of the sentence to confinement at hard labor for 30 days was duly executed.

On 20 June 1969, the applicant was convicted by a second SPCM, of one specification of being AWOL from 8 April to 9 June 1969. He was sentenced to confinement at hard labor for 6 months and forfeiture of $97.00 pay per month for 6 months.

His DA Form 20 shows that he was confined to hard labor from 10 June to
3 September 1969 after his Expiration of Term of Service (ETS).

On 1 May 1970, the applicant was convicted by a third SPCM, of one specification of being AWOL from 5 September 1969 to 6 April 1970. He was sentenced to confinement at hard labor for 5 months and forfeiture of
$100.00 pay per month for 5 months.





All of the details of the applicant’s separation are not contained in the available records. However, on 6 May 1970, a physical examination found the applicant qualified for separation with a physical profile of 111111.

On 22 May 1970, the applicant signed a statement of receipt of board proceedings initiated against him for discharge, under the provisions of Army Regulation 635-212, for unfitness.

On the same day, Headquarters U.S. Army Field Artillery Center, Fort Sill, Oklahoma issued Special Orders Number 142, by board action, separating the applicant with a undesirable discharge, under the provisions of Army Regulation 635-212 for unfitness. He was discharged on 22 May 1970 and he was issued
a undesirable discharge certificate. He had completed 2 years, 9 months and
9 days of creditable service and had 428 days lost time due to being AWOL or in confinement. The highest rank he held was pay grade E-4.

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; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

Department of Defense (DOD) Directive 1332.28 provides the policy and guidance for discharge review. It provides, in pertinent part, that when it is determined that the rights of an individual were prejudiced by an error of fact, law, procedure or discretion such error will be considered material if there is substantial doubt that the discharge would have remained the same if the error had not occurred.

The Manual for Courts-Martial, Table of Maximum Punishments, shows that a
punitive discharge is authorized for any AWOL of more than 30 days.

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




Army Regulation 635-200 also provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’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 inappropriate.

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 counsels contention regarding the lost time in excess of 180 days; however, the record correctly shows the lost time as 428 days and there is no justification to change it.

2. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with the applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights. It is also noted that the applicant’s record of disciplinary infractions began before he went to the RVN. Considering his record of disciplinary actions, the character of the discharge is commensurate with his overall record.

3. There is no available evidence of record and the applicant provides none to show that he had any medical condition which indicates he was unfit for separation.

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. The applicant’s current medical conditions are unfortunate, but he does not provide any mitigating circumstances that would support an upgrade of his discharge.

6. 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 _ ___WDP ___BJE__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076102
SUFFIX
RECON
DATE BOARDED	2002/12/17
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1970/05/22
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	A144.0000
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	A92.25
2.	A92.32
3.
4.
5.
6.