MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 December 2002
         DOCKET NUMBER: AR2002076702

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Charmane Collins		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.

APPLICANT STATES: In effect, that his UD was unjust and that he was punished much more severely than other soldiers for his periods of AWOL. He states that he served honorably for his entire tour in the Republic of Vietnam (RVN); however, when he returned he went absent without leave (AWOL) from Fort Hood, Texas. He claims that the war had separated him from his wife and new baby for a year and this led to difficulties. He also claims that the recurrent memories from the war were more than he could handle, and he was on strong pain medication for frequent headaches. He contends that these problems were the result of his memories of seeing his friends die and the memories of the lost war. He states that while serving in the RVN he was exposed to agent orange and he has now developed health problems from this exposure. He further states that because of his bad discharge, he is unable to obtain any help for his medical problems. He concludes by stating that he believes it is unjust for him to continue to be punished for mistakes he made over 30 years ago, and he knows of others who did far worse and did not receive the severe punishment that he did.

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

On 8 March 1967, he was initially inducted into the Army of the United States for 2 years. During this period of service, he was trained and served in military occupational specialty (MOS) 11B (Infantryman). He also completed a 12 month tour in the RVN on 3 August 1968, and earned the following awards: National Defense Service Medal; Vietnam Service Medal; Vietnam Campaign Medal; and Combat Infantryman Badge.

The record shows that the applicant was promoted to the rank of sergeant (SGT) on 12 June 1968, and that this is the highest rank he attained while on active duty. His disciplinary history for this period of active duty service included only his acceptance of nonjudicial punishment (NJP) under the provisions of
Article 15 of the Uniform Code of Military Justice (UCMJ) on 24 April 1967. It was imposed while he was still in basic training and it was for his being absent without leave (AWOL) from 23 to 24 April 1967.

On 23 October 1968, he was honorably discharged for the purpose of immediate reenlistment. On 24 October 1968, he reenlisted in the Regular Army for 4 years on the enlistment under review. At the time of this reenlistment, he had already completed 1 year, 7 months, and 16 days of creditable honorable active duty service.

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The applicant’s service record for the enlistment under review reflects a disciplinary history that includes his acceptance of (NJP) on two separate occasions, and two convictions by special court-martial (SPCM). He accepted NJP on 6 January 1969, for being absent without leave (AWOL) from
2 to 5 January 1969; and on 8 July 1969, for being AWOL on 7 July 1969.

On 24 June 1969, he was convicted by a SPCM for two periods of AWOL, from 10 February to 2 April 1969 and from 5 April to 21 May 1969. On 8 June 1970, he was again convicted by a SPCM for two periods of AWOL, from 9 July 1969 to 12 January 1970 and from 2 February to 21 May 1970.

On 9 June 1970, the applicant was notified by his unit commander that separation action was being initiated to eliminate him from the Army under the provisions of Army Regulation 635-212, for unfitness. The commander stated that the action was based on the following factors: two SPCM convictions; NJP record; dislike for the military service; lack of self-motivation and negative attitude towards the military; and continuing AWOL related offenses.

On 11 June 1970, the applicant consulted with counsel and was advised of the basis for the contemplated separation action, and its effects. Subsequent to this counseling, he completed his election of rights by waiving consideration of his case by a board of officers, waiving his right to a personal appearance before a board of officers, waiving his right to consulting counsel, and finally he elected not to submit a statement in his own behalf.

On 22 June 1970, the separation action was approved by the appropriate authority, and on 25 June 1970, the applicant was discharged from the Army with an UD. At the time of his discharge, he had completed a total of 1 year,
11 months, and 12 days of creditable active military service on the enlistment under review, and he had accrued a total of 432 days of time lost due to AWOL and confinement.

On 5 October 1973, the Army Discharge Review Board (ADRB) reviewed the applicant’s case and after determining that his discharge was proper and equitable, it denied the applicant’s request for an upgrade to his discharge.

Army Regulation 635-212, in effect at the time, sets forth the basic authority for the separation of enlisted personnel who are found unfit or unsuitable for further military service. Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. 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 Board notes the applicant’s contentions that his UD should be upgraded because the punishment was unjust; his record of honorable service, which included a combat tour in the RVN; the personal and family problems he experienced after serving in the RVN, which contributed to his AWOL related misconduct; and because he is being denied health benefits for illnesses that resulted from his service in the RVN. However, the Board finds these factors are not sufficiently mitigating to warrant an upgrade of his discharge.

2. The applicant’s administrative separation was accomplished in accordance with applicable regulations in effect at the time. In the opinion of the Board, based on the applicant’s misconduct and disciplinary history, the discharge he received was appropriate and accurately reflects his record of service for the enlistment under review.

3. In view of the facts of this case, the type of discharge directed and the reasons therefore were appropriate. Further, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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

__ FNE _ __JEA___ ___CC__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076702
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/12/03
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19700625
DISCHARGE AUTHORITY	AR635-212 . . . . .
DISCHARGE REASON	Unfitness
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.9405
2.	144.9307
3.	144.9321
4.
5.
6.