| Mr. Carl W. S. Chun | Director | |
| Mr. William Blakely | Analyst |
| Ms. Karol A. Kennedy | Chairperson | ||
| Mr. Melvin H. Meyer | Member | ||
| Ms. Tracey L. Pinson | Member |
APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).
APPLICANT STATES: In effect, at the age 20, he was sent to the Republic of Vietnam (RVN) where he was subjected to the horrors of war, unlimited alcohol and drugs, agent orange, and other chemicals. He states that upon his return to the United States, he was unable to cope and was sent to prison. He feels that his discharge should be upgraded based upon the thousands of draft dodgers that received pardons by the United States government and on the time he served in the RVN. Unlike the draft dodgers, he was not pardoned and now suffers from hepatitis C, and a rare form of cancer common in China and Southeast Asia.
EVIDENCE OF RECORD: The applicant's military records show:
On 18 July 1969, the applicant entered the Army for a period of 3 years. He completed training and was awarded military occupational specialty (MOS)
51B (Carpenter).
The applicant’s record shows that he served in the RVN with Company D,
84th Engineer Battalion, from 15 December 1969 to 2 February 1970. The record also confirms that the highest rank he attained during his active duty tenure was private first class/E-3 (PFC/E-3). In addition, his record documents no acts of valor, significant achievement, or service warranting special recognition.
The applicant’s disciplinary record shows that he accepted nonjudicial punishment (NJP) on 9 July 1970, for being absent without leave (AWOL) from on or about 5 May to on or about 22 June 1970.
On 19 November 1970, he was convicted by a special court-martial of the following two periods of AWOL: 20 July 1970 to 2 October 1970; and 12 October 1970 to 18 October 1970. On 31 December 1970, he was convicted by a special court-martial of escaping from lawful confinement.
While confined at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, rehabilitation was attempted, but was unsuccessful. Separation action was initiated to eliminate him from the Army under the provisions of Army Regulation 635-212, for unfitness. The basis for the separation action was the applicant’s minimal response to the correctional treatment program, his negative attitude towards further duty, his unsatisfactory military record, and his lack of potential for performing acceptable military service.
The applicant acknowledged receipt of the separation action notification and consulted legal counsel. Legal counsel advised him of the basis for the contemplated separation, the effects of an UD, and of the rights available to him. Subsequent to this counseling, the applicant completed his election of rights by waiving consideration of his case by a board of officers, personal appearance before a board of officers, and the right to be represented by counsel. In addition, he elected not to submit a statement in his own behalf.
The separation action was approved by the appropriate authority and on 21 April 1971, the applicant was discharged from the Army with an UD. At the time of his discharge, he had completed a total of 10 months and 28 days of creditable active military service, and had accrued 314 days of time lost due to AWOL and confinement.
There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.
Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found unfit or unsuitable for further military service. 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 UD 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 contention that his discharge should be upgraded based on the fact that thousands of draft dodgers received pardons by the United States government, and on his time served in the RVN. However, the Board finds these factors did not result in an error in the applicant’s record or in an injustice being served upon him. Thus, the Board concludes that they fail to provide a sufficiently mitigating basis to warrant the requested relief.
2. There is no evidence of record, nor has the applicant presented any evidence to support that his misconduct was the result of alcohol abuse. However, even if he had alcohol abuse does not excuse misconduct. Attempts were made for rehabilitation of the applicant while he was at the Disciplinary Barracks; however, he was determined to be a rehabilitation failure.
3. The evidence of record confirms that the applicant’s administrative separation was accomplished in accordance with applicable regulations in effect at the time. 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. Finally, the Board concludes that the applicant’s discharge accurately reflects his overall record of service.
4. 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.
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
__KAK__ __MHM _ __TLP __ DENY APPLICATION
| CASE ID | AR2002078516 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2003/01/28 |
| TYPE OF DISCHARGE | (UD) |
| DATE OF DISCHARGE | 19710421 |
| DISCHARGE AUTHORITY | AR635-212 . . . . . |
| DISCHARGE REASON | Unfitness |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 144.0000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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