MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 April 2003
         DOCKET NUMBER: AR2002078086

         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)

---

APPLICANT REQUESTS: That his undesirable discharge (UD) be upgraded to a fully honorable discharge.

APPLICANT STATES: In essence, that during the hearing process, he was given a choice to either complete his military service obligation or to be separated with the type of discharge that he received. He believes the officers involved in his hearing felt that his service was honorable or they would not have offered him the opportunity to complete his service obligation. The applicant also requests that the copy of the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that he previously submitted be returned.

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

Prior to the period of service under review, the applicant was inducted into the Army of the United States and he served from 6-11 August 1968. He was honorably separated for immediate reenlistment and issued a DD Form 214.

On 12 August 1968, he reenlisted in the Regular Army for a period of 3 years. He completed basic combat training and advanced individual training and he was awarded military occupational specialty (MOS) 72B (Communications Center Specialist). On 3 March 1969, he was assigned to Vietnam.

On 22 September 1969, the applicant was convicted by a special court-martial of being absent without leave (AWOL) and of being in an off limits area. His sentence included the forfeiture of $100.00 pay per month for 2 months and reduction to pay grade E-3. The court-martial order is not contained in the available record.

On an unknown date in 1969, the applicant was admitted to Ward 9, 3rd Field Hospital, Vietnam. Medical records pertaining to the admission are not available, however, in a statement made during his period of admission, the applicant said that he was being treated for a "genital infection."

A sworn statement made by a first lieutenant, indicates that, at approximately 2215 hours, 2 January 1970, the night noncommissioned officer (NCO) in charge of Ward 9 reported smelling marijuana in the latrine. The lieutenant and the NCO went into the latrine and the odor appeared to be coming from the stall that was occupied by the applicant. The applicant flushed the commode and appeared "perspiring, eyes glassy and his gait slight ataxic." On 4 January 1970, at approximately 1900 hours, the lieutenant observed the applicant concealing something in his left hand while gathered in the hallway with two visitors. The lieutenant approached him and requested to see what he was concealing. The applicant cursed at the lieutenant, then went into the latrine and attempted to flush the concealed object. When the lieutenant attempted to take possession of the object, the applicant grabbed it and returned to the hallway. The lieutenant was neither able to see the object or to take possession of it. The lieutenant called the action officer on duty (AOD) (captain) and the sergeant of the guard. The applicant cursed at the AOD when he arrived and attempted to leave the hospital premises. At 1945 hours, he was escorted back to his hospital ward. At 2000 hours, the applicant approached the lieutenant and said, "Lieutenant, between you and me, better luck next time" and in a threatening manner, he said "If anyone puts anything in my locker, I am coming to see you."

A sworn statement, dated 4 January 1970 that was provided by the AOD indicates that at approximately 1930 hours, he received a call to come to the hospital; that when he arrived he found the applicant extremely unruly and agitated and refusing to go back to Ward 9. The military police were called and the applicant attempted to leave the premises through the back gate of the hospital in a jeep driven by a friend. The gate guards stopped the applicant and he was escorted back to Ward 9. The officers involved in the incident recommended that disciplinary action be taken against him.

On 19 January 1970, the applicant indicated in a statement in support for a request for discharge for the good of the service that he felt his request for discharge should be granted due to the fact that he was hospitalized and suffering from a genital infection; that previously, his infection had been misdiagnosed by medical personnel; and that he was subjected to great pressure which would have been a major cause of any offenses he would have committed. He also stated that he had made a contribution to the Army during this term of service, particularly prior to his arrival in Vietnam; that he had achieved excellent conduct and efficiency ratings up until very recently; and that he believed it would be in his best interest and the best interest of the United States Army for him to be granted this discharge.

On 5 March 1970, the applicant was convicted by a special court-martial of being disrespectful in language towards two commissioned officers and a NCO; of disobeying a lawful order given by a commissioned officer on 4 January 1970; of being AWOL from his unit from 7-8 January 1970, 10-15 January 1970, and from 29 January-28 February 1970. His sentence included confinement at hard labor for 4 months and forfeiture of $492.00 pay per month for 2 months.

On 7 May 1970, a bar to reenlistment was approved against the applicant. The applicant did not appeal the bar.

On 30 June 1970, the unexecuted portion of the applicant's sentence pertaining to confinement at hard labor was suspended until 1 August 1970 unless the suspension was sooner vacated. The applicant was confined from 2 March 1970 to 30 June 1970.

On 4 July 1970, the applicant returned to the United States Army Personnel Center, Oakland, California, for separation processing.

On 4 July 1970, the applicant was discharged. His records do not contain all of the facts and circumstances surrounding the discharge process; however, they do contain a properly constituted DD Form 214 signed by the applicant at the time of discharge. The applicant’s DD Form 214 shows that he was discharged for unfitness with a UD under the provisions of Army Regulation 635-212, due to being involved in frequent incidents of a discreditable nature with civil or military authorities. He had completed 1 year, 5 months, and 14 days of active military service and he had 159 days of lost time due to being AWOL and in confinement.

On 24 June 1977, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge under the Department of the Defense Special Discharge Review Program (SDRP).

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 normally be furnished a UD.

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 available records show that the applicant was discharged for unfitness under the provisions of Army Regulation 635-212. Some of the facts and circumstances surrounding the discharge process are missing, however, the Board presumes regularity in the discharge process. The applicant has provided no information that would indicate the contrary.

3. The quality of the applicant's service was not 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 staff of the Board has included copies of the applicant's DD Forms 214 for both periods of service.

5. 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

---

INDEX

CASE ID	AR2002078086
SUFFIX
RECON
DATE BOARDED	20030408
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19700704
DISCHARGE AUTHORITY	AR 635-212 . .
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5000
2.
3.
4.
5.
6.