MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 February 2003
         DOCKET NUMBER: AR2002077600

         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
Mrs. Victoria A. Donaldson		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Eloise C. Prendergast		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 be upgraded a to general (under honorable conditions) discharge.

APPLICANT STATES: That clemency was warranted because it is an injustice to continue to suffer the severe consequences of a bad discharge. The applicant states that his average conduct and efficiency ratings, behavior and proficiency marks were “pretty good.” In addition, he states that he received several awards and decorations, served in combat, was close to finishing his tour, has been a good citizen since his discharge and had personal and psychiatric problems that impaired his ability to serve.

The applicant provided the following documents in support of his request for relief: a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 7 May 1971; a copy of DA Form 20 (Enlisted Qualification Record); a copy of the Summary Court Martial Proceedings, dated 14 May 1969; four Record of Proceedings Under Article 15; a copy of the Summary Court Martial Proceedings, dated 7 May 1971; Department of the Army Special Orders Number 133, dated 7 May 1971; a self-authored statement explaining performance; two letters of testimony, and; a criminal history report.

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

The applicant enlisted on 24 December 1968 for a period of three years. He successfully completed Basic Combat Training and Advance Individual Training. He was awarded the military occupational specialty 76a (supply clerk). He served in Vietnam for a period of one year as a supply clerk.

On 14 May 1969, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 30 April 1969 to 9 May 1969. He was sentenced to reduction to the grade of Private (E-1), hard labor without confinement for thirty (30) days, and forfeiture of $73.00 pay for one (1) month.

On 13 April 1970, nonjudicial punishment was imposed against the applicant for possession of eleven whole marijuana cigarettes. His punishment consisted of reduction in grade to PFC (E-3) and forfeiture of $75.00 pay for two (2) months.

On 16 December 1970, nonjudicial punishment was imposed against the applicant for being AWOL for the period 27 November 1970 to 11 December 1970. His punishment consisted of reduction in grade to PV2 (E-2), forfeiture of $32.00 pay for one (1) month and extra duty of 14 days not to exceed two (2) hours per day.

On 5 January 1971, nonjudicial punishment was imposed against the applicant for being AWOL for the period 21 December 1970 to 4 January 1971. His punishment consisted of reduction in grade to Private (E-1), forfeiture of $75.00 pay for two (2) months and extra duty of 30 days.

On 19 January 1971, nonjudicial punishment was imposed against the applicant for failure to go at the time prescribed to his appointed place of duty on
17 January 1971. His punishment consisted of forfeiture of $30.00 pay for one (1) month.

On 30 March 1971, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 16 February 1971 to 16 March 1971. He was sentenced to hard labor without confinement for forty five (45) days, and forfeiture of $118.00 pay for one (1) month.

On 25 March 1971, the applicant was notified of his pending separation under the provisions of Army Regulation 635-212 for unfitness. The applicant waived his right to a hearing before a board of officers, waived his right to representation by counsel and elected not to submit documents on his behalf.

On 25 March 1971, the applicant acknowledged that he understood he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the DVA; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Discharge. Additionally, he elected not to submit a statement in his own behalf.

The applicant underwent a psychiatric examination and a medical examination and was cleared for administrative separation.

On 23 April 1973, the separation authority approved the recommendation for separation under the provisions of Army Regulation 635-212 for unfitness and directed that the applicant be issued an undesirable discharge certificate.

On 7 May 1971, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-212 for unfitness. He had 2 years and 29 days of service and over 75 days of lost time.

Evidence of record shows that the applicant applied to the Army Discharge Review Boards Agency (ADRB) for upgrade of his discharge. On 8 March 1973, the ADRB determined that he was properly discharged and denied his request to upgrade the type and nature of his discharge.


Evidence of record shows that the applicant applied to the Army Board for Correction of Military Records for upgrade of his discharge to general conditions. The ABCMR reviewed the applicant’s personnel service record and denied his request on 16 October 1974.

The applicant provided a character reference from his mother which states that he has a very troubled and difficult childhood due to an abusive father. She also states the applicant became addicted to heroin while serving in Vietnam and that he is no longer addicted to heroin. She continues that the applicant has dedicated his life to the Lord and the applicant would make anyone proud.

The applicant also provided a character reference from his aunt and uncle which states that he is an asset to anything that he endeavors and that his work in the church and community is above expectations.

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.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 noted the applicant’s claim that clemency is warranted because it is an injustice to continue to suffer the severe consequences of a bad discharge. Notwithstanding the applicant’s contention, he committed the offenses charged and has presented no compelling reasons why he should be granted relief. In addition, the applicant has failed to provide evidence that the discharge was unjust or inequitable.

2. The Board noted the character references provided by members of the applicant’s family. The Board also noted the applicant’s contention regarding his post service achievements and conduct. However, good post service conduct alone is not a basis for upgrading a discharge and does not mitigate his indiscipline in the Army.

3. The Board noted the applicant’s claims that he had personal and psychiatric problems that impaired his ability to serve. There is no evidence in his service personnel record and the applicant has provided no evidence that he suffered from and/or was treated for psychiatric problems. Evidence of record shows that the applicant underwent a psychiatric examination and a medical examination and was cleared for administrative separation. Therefore, his claims of personal and psychiatric problems are without merit.

4. The Board reviewed the applicant’s record of service and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge.

5. The Board reviewed the applicant’s overall record of service which included four nonjudical punishments and two summary courts martial. As a result the Board determined that his record was not satisfactory. Therefore, the applicant is not entitled to a general discharge.

6. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge and reason for separation were appropriate considering all of the facts of this case.

7. 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 satisfy this requirement.

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

__FNE __ ___JEA__ ___ECP_ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077600
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030206
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200.0000
2.
3.
4.
5.
6.