MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 January 2003
         DOCKET NUMBER: AR2002078647

         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
Mr. William Blakely		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Tracey L. Pinson		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: In effect, that his undesirable discharge (UD) be upgraded.

APPLICANT STATES: In effect, that he was 17 years of age and immature when he enlisted in the Army. Further, he had a bad home situation and was on his way to becoming a father and hoped the Army would be the answer to his problems. He claims that he successfully completed basic training and advanced individual training (AIT) and was awarded the military occupation specialty (MOS) 11B (Infantryman), of which he was very proud. He states that upon completion of his training, he was assigned to Germany where his problems started. He claims that he was sent to an Artillery unit and his MOS was changed to 13A (Field Artillery). He states that he was then given duties on a self-propelled artillery gun, which he did not know how to perform. After 8 months, he reenlisted in order to go to another unit in the hope that things would be different. He claims that he was never given the chance to prove himself as a 13A because he was placed on base guard duty. At that time, he again reenlisted for 6 years in order to go to Vietnam, but he found out that he was not eligible to reenlist at that time because he had just reenlisted for 3 years 8 months earlier. The Army recouped the bonus he received, but left his enlistment commitment at 6 years, a fact he did not learn of until he completed his tour in Vietnam.

The applicant indicates that by the time he returned to the United States and reported to Fort Riley, Kansas, he was married and had a child and he found that his enlistment commitment was still 6 years. After serving in Germany and Vietnam, finding his enlistment commitment had not changed was more than he could bear. Around this time his wife left him and took his child. After learning of this, he requested and was denied leave. He claims that he even went to the Red Cross for assistance, but was still denied leave. For these reasons, he went absent without leave (AWOL) to find his family and to try and save his marriage. He claims that he understands that these are not excuses for his disregard for authority, but he is now 51 years old and has been happily married and has raised three successful children. He claims that he has been a truck driver for
16 years and he owns his own home. He states that he serves his community and church and he loves God and his country, and would serve again if he had the opportunity. He contends that there are things he did in Vietnam that he has had to live with everyday, and he has had to live with the shame of this discharge, which he now asks be upgraded. In support of his application, he submits three third party letters of support.

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

On 27 May 1968, he initially enlisted for three years. He successfully completed basic training and AIT, and was awarded MOS 11B (Infantryman). In October 1968, he was assigned to Germany, and in December 1968, he was reclassified into MOS 13A (Field Artilleryman).
On 27 January 1969, while assigned to a Field Artillery Battery in Bamberg, Germany, the applicant reenlisted for three years. On 18 February 1969, less than a month later, after being reassigned to another Field Artillery unit in Dachu, Germany, the applicant again reenlisted, this time for six years.

In March 1969, it was discovered that the applicant’s last six year reenlistment was erroneous because he was not eligible for discharge because he had just reenlistment for three years less than a month earlier. The applicant requested that he be allowed to remain in service and this request was endorsed with approval recommendations by members of the chain of command and forwarded to the Department of the Army.

The applicant’s record shows that the highest rank he attained while serving on active duty was private first class/E-3 (PFC/E-3), he completed a tour of duty in Vietnam, and he earned the following awards during his active duty tenure: Vietnam Service Medal with 2 bronze service stars; Republic of Vietnam Campaign Medal with 60 Device; and the National Defense Service Medal.

The applicant’s record documents no other specific acts of valor, significant achievement, or service warranting special recognition. However, it does reveal an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on the following nine separate occasions for the offenses indicated: 5 April 1969, for disobeying a lawful order; 3 February 1970, for being absent from his appointed place of duty; 5 February 1970, for disobeying a lawful order; 26 February 1970, for disobey a lawful general regulation and disobeying a lawful order; 8 July 1970, for refusing to get out of bed; 16 July 1970, for refusing to ride in a convoy; 3 November 1970, for being absent from his appointed place of duty; 20 November 1970, for being absent from work call formation; and 21 December 1970, for being absent without leave (AWOL) from 17 December to 18 December 1970.

In addition, the applicant was convicted of two specifications of AWOL by a summary court-martial on 9 March 1971. The AWOL periods for which he was convicted were from on or about 16 to on or about 20 February 1971, and for
22 January 1971.

On 15 September 1971, the applicant’s unit commander notified the applicant that a separation action was being initiated to eliminate him from the Army under the provisions of Army Regulation 635-212, for unfitness. The commander stated that the basis for the separation action was the applicant’s lack of interest in his duty performance manifested by his negative attitude towards those responsibilities required of a soldier. Also, his irresponsible attitude and lack of progress in the Army marked him unfit for military service.

On 17 September 1971, the applicant acknowledged receipt of the separation action notification and consulted legal counsel, who advised him of the basis for the contemplated separation action, its effects, and of the rights available to him. Subsequent to his counseling, the applicant completed his election of rights by electing to waive consideration of his case by a board of officers and the right to consulting counsel. Further, the applicant chose not to submit a statement in his own behalf.

On 13 October 1971, the separation action was approved by the appropriate authority, who directed the applicant receive an UD and that he be reduced to the lowest enlisted rank. On 11 November 1971, the applicant was discharged accordingly after completing a total of 2 years and 11 months of creditable active military service, and having accrued 197 days of time lost due to AWOL and confinement.

On 12 April 1983, the Army Discharge Review Board (ADRB) determined the applicant’s discharge had been proper and equitable, and it denied the applicant’s request for an upgrade.

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. Paragraph 6a(1) provided for the separation of members involved in frequent incidents of a discreditable nature with civil or military authorities, by reason of unfitness. An UD was normally considered appropriate for members separating under these provisions.

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 his age, immaturity, family problems, MOS assignment, and enlistment issues contributed to his misconduct. However, lacking any evidence of record or independent evidence to show that these factors were in error or unjust, the Board concludes that they provide an insufficient evidentiary basis to support the requested relief, and it concurs with the determination of the ADRB that the applicant’s discharge was both proper and equitable.

2. In addition, the Board also carefully considered the applicant’s post service conduct and accomplishments, as attested to in the letters of support he provided, but it finds these factors are not sufficiently mitigating to warrant an upgrade to his discharge at this time.

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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; and that his 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

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

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INDEX

CASE ID	AR2002078647
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/01/28
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19711110
DISCHARGE AUTHORITY	AR635-212 . . . .
DISCHARGE REASON	Unsuitability
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.9307
3.	144.9301
4.
5.
6.