MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 January 2003
         DOCKET NUMBER: AR2002078900

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Arthur A. Omartian		Member
Ms. Marla J. N. Troup		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 his discharge was due to traumatic stress and to his youth and immaturity.

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

On 15 August 1966, he enlisted in the Army for 3 years. He successfully completed basic training at Fort Bragg, North Carolina and advanced individual training (AIT) at Fort Sill, Oklahoma. Upon completion of training he was awarded military occupational specialty (MOS) 13A (Field Artilleryman), and he was assigned to the Republic of Vietnam (RVN).

On 28 February 1967, the applicant arrived in the RVN and was further assigned and worked in Headquarters and C Batteries of the 1^st Battalion, 7^th Artillery, 1^st Infantry Division, where he performed duties as a Cannoneer, Radio Telephone Operator, Reconnaissance Sergeant, and Artillery Mechanic.

The applicant’s Enlisted Qualification Record (DA Form 20) confirms that the highest rank he attained while serving on active duty was specialist four (SP4). It also shows that during his active duty tenure, he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), and the Vietnam Campaign Medal (VCM).

Although the award is not included in the list of awards entered on his DA Form 20, the applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of General Orders (GO) Number (#) 816, dated 29 January 1968, issued by Headquarters, 1^st Infantry Division, which awarded the applicant the Army Commendation Medal (ARCOM) with Valor (“V”) Device , for heroism on
24 November 1967.

The applicant’s record also reveals an extensive disciplinary history. His MPRJ contains a copy of Unit Orders # 2, dated 15 January 1968, issued by Battery C, 1^st Battalion, 7^th Artillery, which confirms that as a result of his acceptance of nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), he was reduced to the rank of private first class (PFC) on
15 January 1968.

The applicant’s MPRJ also contains a copy of the first page of Summary
Court-Martial Order # 76, dated 14 June 1968, issued by the Special Processing Battalion, Fort George G. Meade, Maryland. This partial order shows that the applicant was convicted of being AWOL, from on or about 3 April to on or about
2 June 1968, by a summary court-martial on 14 June 1968. It further shows that his sentence included a reduction to private E-2 (PV2).
On 6 September 1968, the applicant was apprehended by civil authorities in Prince George County, Maryland, for possession of narcotics. On 7 February 1969, the applicant appeared before the US District Court, Baltimore, Maryland, based on being charged with the passing and uttering of altered obligations. He was sentenced to eighteen months to run concurrently with his earlier two year sentence, and he was confined in the United States Penitentiary, Lewisburg, Pennsylvania, where he was scheduled to remain until 4 April 1970.

On 21 November 1969, the applicant was notified by the Assistant Adjutant, Fort Meade, Maryland, that he was being recommended for separation from the Army under the provisions of Army Regulation 635-206, by reason of his conviction by civil authorities.

On 13 February 1970, the applicant acknowledged receipt of the separation action, and completed his election of rights. He waived his right to representation by counsel and consideration of his case by a board of officers. He further indicated that he did not wish to appeal his civil conviction or to make a statement in his own behalf in connection with the separation action. In addition, he acknowledged that he was aware that an UD was being recommended and as a result, he would be deprived of many veterans benefits from the Federal and State Government. Further, he stated that he was aware that he could encounter substantial problems as a result of receiving an UD.

The applicant’s separation was approved by the appropriate authority and on
25 February 1970, Special Orders Number 38, issued by Headquarters,
Fort George G. Meade and Fort George G. Meade, Maryland, authorized the applicant’s UD under the provisions of Army Regulation 635-206, by reason of civil conviction. On 26 February 1970, the applicant was discharged accordingly.

The separation document (DD Form 214) that was issued to the applicant on the date of his discharge, 26 February 1970, shows that he received an UD under the provisions of Army Regulation 635-206 for unfitness, by reason of civil conviction. The separation document also indicates that he completed a total of 1 year, 7 months, and 12 days of creditable active military service, and he had accrued 1 year, 10 months, and 24 days of time lost due to AWOL and confinement. The DD Form 214 further shows that during his active duty tenure, he earned the NDSM, VSM, and the VCM. The ARCOM with “V” Device is not included in the awards listed in the DD Form 214.

There is no indication in the record that the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within its 15 year statute of limitations.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness, by reason of civil conviction. Members separated under this provision normally received an 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. The Board notes the applicant’s contention that traumatic stress, coupled with his youth and immaturity were the reasons for the conduct that led to his discharge. However, the Board finds these factors are not sufficiently mitigating to warrant the requested relief.

2. The evidence of record shows that despite his youth, the applicant successfully completed training and a tour in the RVN prior to committing the offenses that led to his civil conviction and discharge. Further, the Board carefully considered his overall record of service, including his combat service and award for valor. However, given his extensive disciplinary history, which included misconduct while serving in the combat zone, and given the gravity of the offenses for which he was convicted and confined by civil authorities, the Board concludes that an upgrade to his discharge is not warranted at this time.

3. The record also confirms the applicant waived his right to consideration of his case by a board of officers, and elected not to make a statement in his own behalf or to appeal his civil conviction in connection with his separation processing. Thus, the Board finds that the applicant’s discharge processing was accomplished in accordance with applicable law and regulation in effect at the time.

4. The Board is also satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process, and that his discharge accurately reflects his overall record of service.

5. 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.

6. 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.

NOTE: The Army Review Board Support Division, St. Louis, is directed to publish and provide the applicant a correction to his DD Form 214, dated
26 February 1970, which adds his earned ARCOM with “V” Device to Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized).

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__RVO__ __AAO _ __MJNT__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078900
SUFFIX
RECON
DATE BOARDED	2003/01/16
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	1970/02/26
DISCHARGE AUTHORITY	AR 635-206
DISCHARGE REASON	Unfitness, Civil Conviction
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 360	144.0000
2.
3.
4.
5.
6.