MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 April 2003
         DOCKET NUMBER: AR2002077240

         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. Raymond J. Wagner		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Linda M. Barker		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.

APPLICANT STATES: That he has suffered the stigma and hardship of a less than honorable discharge for many years and believes clemency is warranted for this reason. He contends he was the victim of racial prejudice; that he was provoked to commit acts of violence/defiance; and that personal problems, racial discrimination and drug abuse impaired his ability to serve. He articulates a litany of acts committed against him by the Army, including: being forced to do things in violation of a physical profile that he received from medical personnel; being given money and forced to buy uniforms that were later confiscated; and being held in confinement past his release date, then forced to leave the military with no money for transportation home. He concludes by adding that, based on current standards, the punishment he received was too severe given the nature of his isolated, minor offenses and the fact that his conduct and efficiency ratings were generally good. In support of his application, he submits six statements, one of which was written by a clinical psychologist at the Behavior Health Service, Lake County (Illinois) Health Department, Waukegan, Illinois. The clinical psychologist indicates that the applicant has been a patient since 1998 and that he suffers from a long-term depressive disorder with a diagnosis of "Dysthymic Disorder with periodic Major Depressive Episodes." It is noted that the applicant attends psychotherapy bi-weekly and takes 30 milligrams of Remeron on a daily basis. The applicant also submits a letter from the National Personnel Records Center and some documents that he obtained from his Official Military Personnel File.

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

He enlisted in the Regular Army (RA) for 3 years on 31 August 1970 under the "RA enlistment option, unassigned." Following the completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 94A (Cook).

On 21 October 1970, the applicant received a temporary physical profile for limited duty for 14 days due to pain in his left knee. He was to do no crawling; stooping; running; jumping; prolonged standing over 30 minutes or marching over 1/4 mile. There is no evidence available to indicate that the profile was extended beyond the initial 14 days, or that the conditions set forth in the profile were violated.

The applicant was alerted for overseas movement. On 23 February 1971, while assigned to the Overseas Transient Company, Fort Jackson, South Carolina, nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed. His punishment included the forfeiture of $10.00 pay per month for 1 month. On 1 March 1971, he was assigned to Germany.

On 4 April 1972, NJP was imposed against the applicant for being absent from his place of duty without proper authority on 2 April 1972. His punishment included the forfeiture of $45.00 pay per month for 1 month and 7 days of extra duty and restriction.

On 19 June 1972, the applicant was convicted by a summary court-martial of failure to go to his appointed place of duty at the time prescribed on 7 June 1972. He was sentenced to forfeit $100.00 pay per month for 1 month and 30 days of restriction.

On 15 September 1972, NJP was imposed against the applicant for operating a privately owned vehicle without a valid operator's permit on 23 June 1972, and for operating a privately owned motor vehicle in a reckless manner by failing to yield to the right of way thereby causing a vehicle accident on 25 August 1972. His punishment included the forfeiture of $25.00 pay per month for 1 month and to perform 14 days of extra duty and 6 days of restriction.

On 20 December 1972, the applicant was convicted by a special court-martial of failure to follow a lawful order given by a noncommissioned officer on 21 September 1972, of breaking restriction on 22 September 1972, of being absent without leave from 20-24 October 1972, of two charges of being disrespectful in language towards a commissioned officer, of two charges of disobeying a lawful command given by a commissioned officer on 16 and 17 October 1972, and of wrongfully communicating a threat to do harm to a commissioned officer on 16 October 1972. He was sentenced to reduction from pay grade E-3 to pay grade E-1; to forfeit $190.00 pay per month for 6 months and to be confined at hard labor for 6 months.

The applicant remained in military confinement in Mannheim, Germany from 20 December 1972 until he was transferred to the United States Army Retraining Brigade (USARB), Fort Riley, Kansas, on 9 February 1973. The applicant was in rehabilitative confinement at the USARB until 31 May 1973. After this date, he was released from confinement, but remained at the USARB in a trainee status.

On 2 May 1973, the commander at the USARB requested that the applicant be processed for separation under the provisions of chapter 13, Army Regulation 635-200. A DA Form 2496 (Disposition Form) prepared on that date indicates that, while the applicant was assigned to the USARB: he was the subject of intensive counseling; he was placed in disciplinary segregation for disobeying a lawful order and for insubordination; he was disrespectful in language towards non-commissioned officers on two separate occasions; he was recycled for poor performance and attitude; and he received seven adverse observation reports. It was further noted that: he demonstrated a complete disregard for military authority and he did not meet the criteria for further rehabilitation attempts; and his conduct and performance ratings fluctuated between average and marginal. A social worker observed and evaluated the applicant and advised the applicant's chain of command that he had the ability to perform adequately. Both the applicant's commander and the cadre believed that the applicant's unacceptable conduct and performance negated any restoration potential. Even though he possessed the ability to perform, he was unwilling to conform to the standards of conduct that would permit him to return to duty. He demonstrated that he would not adjust to military discipline and regimentation and he would continue to be an administrative and disciplinary burden on any unit.

On 7 May 1973, as a part of the separation process, the applicant received a physical examination that determined he was physically qualified for separation. An undated mental status evaluation indicated that his behavior was normal; he was fully alert, fully oriented, his thinking process was clear, his thought content was normal, and his memory was good; he had no significant mental illness; he was mentally responsible; and he was able to distinguish right from wrong and to adhere to the right. He also had the mental capacity to understand and participate in board proceedings and he met retention standards.

On an unknown date, the applicant's commander officially notified him that he was being recommended for discharge under the provisions of chapter 13, Army Regulation 635-200, for unfitness.

On 12 May 1973, the applicant acknowledged that he had consulted with legal counsel and that he had been informed of the basis for the contemplated separation action under the provisions of chapter 13, Army Regulation 635-200. He acknowledged that he understood he could expect to encounter substantial prejudice if he were issued a UD and that he had been informed of the rights available to him. He requested a personal appearance before an administrative separation board.

The applicant's record is void of the facts surrounding the board proceedings.
However, the Board presumes regularity because, on 30 August 1973, the appropriate authority vacated the UD that had been initiated on 9 July 1973 and suspended for 6 months.

The applicant’s DD Form 214 indicates that he was separated on 6 September 1973, under the provisions of paragraph 13, Army Regulation 635-200, for unfitness by being involved in frequent incidents of a discreditable nature with civil or military authorities. He was separated with a UD. He had completed a total of 2 years, 6 months, and 20 days of creditable service. He also had 167 days of lost time due to being AWOL and in military confinement.

On 8 November 1977, based on a records review, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge. On 4 March 1983, the applicant personally appeared before the ADRB and he was again denied a request for an upgrade of his discharge.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unfitness and provides, in pertinent part, that commanders will separate a member under this chapter when the member is involved in frequent incidents of a discreditable nature with civil or military authorities. A UD was generally 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. The applicant has not shown, and the record does not support, that he was the victim of racial prejudice/discrimination, or that personal and drug problems impaired his ability to serve.

3. There is no evidence that the applicant was detained in confinement beyond his release date or that he was not afforded the same separation benefits given all soldiers, to include transportation benefits. The evidence does show that, after his release from confinement at the USARB, he remained at the USARB as a trainee, not as a confined prisoner. The USARB was established in 1968 as the U.S. Army Correctional Training Facility (CTF). The CTF's mission was to confine prisoners and retrain them for return to duty or, when necessary, to separate them from the Army. The CTF emphasized rehabilitation and retraining for return to duty. In 1973, the CTF was renamed the U.S. Army Retraining Brigade (USARB) to more accurately reflect its emphasis on retraining.

4. The Board did not find the applicant's punishment or his characterization of service to be harsh. Given the same circumstances under current standards, he could receive the same punishment for misconduct and the same characterization of service. The applicant has provided no evidence to warrant an upgrade of his discharge, nor has he provided any evidence to warrant clemency.

5. The applicant’s record does not contain all of the facts and circumstances concerning the discharge process. The Board noted that the applicant’s record contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was authenticated by the applicant. This document identifies the reason and characterization of the discharge and the Board presumed government regularity in the discharge process.

6. The evidence available does not support that the applicant used drugs while he was in the military. If the applicant illegally abused drugs, he knowingly risked his military career and diminished the quality of service below that meriting an honorable discharge.

7. The applicant had many legitimate avenues through which to obtain assistance with his personal problems without committing the misconduct that led to the separation action under review.

8. 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

__rjw___ __bje___ __lmb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077240
SUFFIX
RECON
DATE BOARDED	20030408
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19730906
DISCHARGE AUTHORITY	AR635-200, Chap 13
DISCHARGE REASON	A49.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.4900
2.
3.
4.
5.
6.