MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 March 2003
         DOCKET NUMBER: AR2002077239

         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. Thomas A. Pagan		Chairperson
Mr. Roger W. Able		Member
Mr. John A. Kelley		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 general discharge under honorable conditions.

APPLICANT STATES: That when he was drafted into the Army in June 1967, his father was very ill and hospitalized at the Veterans Administration Medical Center in Tennessee; and that people were protesting against the Vietnam War. He was very confused and he began drinking heavily. Personal problems consumed him and he went into an absent without leave (AWOL) status. Now, he is completely disabled and in a wheelchair; he has been married for 32 years and he has two children. He does not have any health insurance and he would like to have access to the Veterans Administration Healthcare System. He understands that going AWOL was wrong, however, he completed 11 months and 25 days of good time and he believes that this should count for something.

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

That he was inducted into the Army of the United States on 12 June 1967. He took his Basic Combat Training (BCT) at Fort Benning, Georgia. While in BCT, he was AWOL from his unit on 1 July 1967 and accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice. His punishment included 14 days’ restriction and forfeiture of $20.00 pay for 1 month.

The applicant completed BCT and, in August 1967, he was assigned to Fort McClellan, Alabama, for Infantry Advanced Individual Training (AIT). He went AWOL from his AIT unit from 23-27 August 1967. He accepted NJP and was punished by 14 days of restriction and extra duty, and forfeiture of $21.00 pay for 1 month.

The applicant went AWOL again from 2 September–11 October 1967. Court-martial charges were preferred against him and, on 24 October 1967, he was convicted by a special court-martial of being AWOL from 2 September through 11 October 1967. His sentence included confinement at hard labor for 3 months; however, he only remained in confinement from 11 October-27 November 1967.

The applicant was returned to his AIT unit to finish his training. On 14 December 1967, he accepted NJP for being absent from his place of duty on that same date. He was punished by forfeiture of $21.00 pay for 1 month.

On 6 March 1968, the applicant, still undergoing AIT, accepted NJP for being AWOL from 4-5 March 1968. He was punished by 14 days’ extra duty and restriction, and forfeiture of $21.00 pay for 1 month.

The applicant promptly went AWOL again, this time from 16 March-8 May 1968. Upon his return to military control, he was placed in pre-trial confinement and court-martial charges were preferred against him. On 21 May 1968, he was convicted by a special court-martial for being AWOL from 16 March-8 May 1968 and sentenced to confinement at hard labor for 4 months (suspended for 4 months) and forfeiture of $60.00 pay per month for 4 months. The sentence was approved on 5 June 1968 and the applicant was released from confinement and credited with serving in confinement from 8 May-4 June 1968.

The applicant finally completed AIT and was transferred to Fort Benning on/about 1 September 1968 for assignment to the 26th Infantry Platoon (Scout Dog) as a dog handler. He was AWOL from his unit from 10-27 October 1968 and again from 6 December 1968-28 January 1969, until he returned to military control at Fort McPherson, Georgia.

Court-martial charges were preferred against him and, on 19 February 1969, the applicant was convicted by a special court-martial of the periods of AWOL from 10-27 October 1968 and from 6 December 1968-28 January 1969. He was also convicted of failure to obey an order to return to his unit at Fort Benning. His sentence included confinement at hard labor for 6 months and forfeiture of $72.00 pay per month for 6 months. He served in confinement from 29 January 1969-5 March 1969.

On 3 March 1969, the applicant underwent a mental status evaluation (MSE) by professionally trained psychiatric personnel and was diagnosed as having an emotionally unstable personality disorder. The applicant felt that he could not adjust to Army life, tolerate authority figures or regimentation, and he had no motivation towards constructive goals. The examining official believed that further rehabilitative efforts would be non-productive. The MSE determined that the applicant was responsible for his own behavior; he knew the difference between right and wrong and had the ability to adhere to the right; that he was able to participate in any proceeding that required his cooperation; and that he did not suffer from any disqualifying mental or physical defects that warranted disposition through medical channel. The MSE recommended that the applicant be administratively separated under the provisions of Army Regulation 635-212.

On 4 March 1969, the applicant’s commander notified him that he was being recommended for separation under the provisions of Army Regulation 635-212, for unfitness, due to involvement in frequent incidents of a discreditable nature with civil or military authorities.

On 6 March 1969, the applicant consulted with legal counsel. He acknowledged that he had been advised of the bases for the contemplated action, its effects, and the rights available to him. He also stated that he understood the consequences of receiving a UD. He waived further representation by legal counsel and did not submit a statement in his own behalf.

On 12 March 1969, as part of the separation process, the applicant was again evaluated and determined to be both mentally and physically qualified for separation.

On 27 March 1969, the applicant's commander recommend that he be separated prior to the expiration of his term of service under the provisions of Army Regulation 635-212, due to unfitness, with a UD. The commander stated that the bases for his recommendation were the three court-martial convictions and the three NJP's that the applicant had received; the futile attempts to rehabilitate the applicant; and the repeated counselings, to include counseling by the post chaplain. The commander stated that the applicant was not useful to the Army; he had shown an extremely negative interest in the military as evidenced by his AWOL record; and that his past actions and his present attitude indicated he lacked rehabilitative potential.

On 9 April 1969, the intermediate commander recommended separation with a UD. On the same date, the appropriate authority approved the recommendation, and directed that the applicant be discharged under the provisions of Army Regulation 635-212, for unfitness, with a UD.

On 15 April 1969, the applicant was discharged under the provisions of Army Regulation 635-212, for unfitness, with a UD. He had completed 11 months and 25 days of active military service and according to his DD Form 214, he also had 309 days of lost time due to being AWOL and in confinement.

Army Regulation 635-212, in effect at the time set forth the basic authority for the separation of enlisted personnel who were found to be unfit or unsuitable for military service. The regulation further provided, in pertinent part, that service members discharged for unfitness would be furnished a UD, unless circumstances warranted a general or honorable discharge.

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 applicable regulations, then in effect, with no indication of procedural errors which would have jeopardized his rights.

3. The quality of the applicant's service was far from consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. His service record fully supports both the reason for discharge and the characterization of his service. The applicant has provided no evidence to the contrary.

4. The applicant underwent a medical examination prior to being separated and he was determined to be fully qualified for separation. He had no service-connected illnesses, injuries, or disabilities.

5. Eligibility for veteran's benefits (to include medical benefits) does not fall within the purview of the Board and the Board does not grant relief solely for the purpose of gaining Department of Veterans Affairs medical benefits.

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

__tap___ __rwa___ __jak___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077239
SUFFIX
RECON
DATE BOARDED	20030313
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19690415
DISCHARGE AUTHORITY	AR635-212
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5000
2.
3.
4.
5.
6.