MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 29 October 2002
         DOCKET NUMBER: AR2002080115


         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:

Ms. Karol A. Kennedy		Chairperson
Mr. Thomas A. Pagan		Member
Ms. Barbara J. Lutz		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: Reconsideration of his earlier appeal to correct his military records by showing that his undesirable discharge be upgraded to an honorable discharge.

APPLICANT STATES: In effect, that after serving in Vietnam that he suffered from Post Traumatic Stress Disorder (PTSD) and that he only had 6 months to go before he was separated. He contends that his service prior to his acts of indiscipline was excellent and that his actions were caused by PTSD.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect the Board's previous consideration of the applicant's case in Docket Number AC87-00185 on 14 December 1988.

The applicant submits a self-authored eight page letter, a statement of earnings from the Social Security Administration, a summary from the Disability Determination Section from a mental health service facility, and a Department of Health and Human Services disability decision document.

The applicant’s submissions are new evidence and argument which will be considered by the Board.

The applicant entered active duty on 26 September 1966 for a period of 3 years.
He successfully completed basic combat training and advanced individual training. On 24 July 1967, he was transferred to Vietnam for duty as a rifleman.

On 31 March 1968, nonjudicial punishment (NJP) was imposed against the applicant for without proper authority, absenting himself from his Company Area for the period of 0900, 30 March 1968 to 0900, 31 March 1968. His punishment consisted of forfeiture of $25.00.

On 21 March 1968, NJP was imposed against the applicant for missing the movement of the resupply convoy. His punishment consisted of forfeiture of $25.00.

On 7 January 1968, NJP was imposed against the applicant for operating a water truck in a reckless manner while drunk and subsequently driving that vehicle into a ditch. His punishment consisted of reduction grade to E-2 and forfeiture of $22.00 for one month.

On 30 November 1968, the applicant was convicted by a summary court martial for contempt of a superior noncommissioned officer. He was sentenced to a reduction in grade to pay grade E-2, forfeiture of $50.00, 30 days extra duty, and 14 days restriction.

On 8 July 1969, he was convicted by a special court-martial for three periods of absence without leave between 3 December 1968 and 4 June 1969. He was sentenced to 6 months confinement at hard labor, forfeiture of $97.00 per month for 6 months, and reduction to pay grade E-1. This sentence was suspended on 12 August 1969, then remitted on 17 September 1969.

The applicant was AWOL on three occasions between 6 October 1969 and
11 January 1970.

On 26 March 1970, the applicant was separated with an undesirable discharge under the provisions of Army Regulations 635-200, for the good of the service. He had served 2 years, 6 months and 7 days of active service.

The applicant applied to the Army Discharge Review Board (ADRBB) on
26 March 1972. The ADRB denied relief on 4 June 1973.

The applicant applied to the ADRB on 26 July 2002. The ADRB determined that the request was not filed within the 15 years statute of limitations and forwarded the request to the Army Board for Correction of Military Records for review.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration. This includes but is not limited to any facts or arguments as to why relief should be granted. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. An undesirable discharge was normally considered appropriate at that time.
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. Notwithstanding the applicant's contention that he suffered from PTSD. There is no evidence and the applicant has provided no evidence that he suffered from PTSD during his service or that PTSD was the cause of his indiscipline and subsequent separation.

2. 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.

3. The Board reviewed the applicant's record of service which included three nonjudicial punishments, one special court-martial conviction and one summary court-martial conviction. As a result the Board determined that his record of service was not satisfactory. Therefore, the applicant is not entitled to a general discharge.

4. The Board considered the applicant's contentions regarding his post service achievements and conduct. However, good post service conduct alone is not a basis for upgrading a discharge.

5. 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 the facts of the case.


6. 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 unjust. The applicant has failed to submit evidence that would satisfy this requirement.

7. The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

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

___KAK_ ___TAP__ ___BJL__ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002080115
SUFFIX
RECON	This applies only to ADRB
DATE BOARDED	10/29/02
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	Deny
REVIEW AUTHORITY
ISSUES 1.	110.0200.0000
2.
3.
4.
5.
6.