MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 1 May 2003
         DOCKET NUMBER: AR2002080133


         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Thomas B. Redfern		Chairperson
Ms. Linda D. Simmons		Member
Mr. John T. Meixell		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 an earlier appeal that his bad conduct discharge be changed to an honorable discharge (in effect, requests that clemency in the form of an honorable discharge be granted). He also requests, in effect, that clemency in the form of a general discharge or medical discharge be granted, which are new issues.

APPLICANT STATES: In effect, that his discharge should be changed so he can receive medical treatment from the Department of Veterans Affairs (DVA) for Post Traumatic Stress Disorder (PTSD) due to his combat action in Vietnam. He contends that he served 12 months in combat in Vietnam, that he went absent without leave (AWOL) because his wife was sick, that he turned himself back in to his unit and that he was confined at Fort Sill.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a Memorandum of Consideration prepared to reflect the consideration of Docket Number AC86-03020 by the Army Board for Correction of Military Records (ABCMR) on 9 September 1987. The ABCMR denied the application based on failure to timely file.

On 21 November 1990, a request for reconsideration was reviewed by the ABCMR. The staff determined that the applicant had not provided any new evidence and his request was closed without action.

An undated statement from a counselor at the DVA in Milwaukee, Wisconsin, was submitted on behalf of the applicant. In summary, the counselor points out that the applicant did have a number of instances of discipline, but that such incidents were more indicative of the applicant's immaturity and "medical" to include PTSD rather than a pattern [of failure] to adjust to military service. The counselor states that the applicant does not recall his general court-martial charges and the only thing he does remember is that he was AWOL for 14 days because his wife was sick. The counselor goes on to state that the applicant did not know anything about the field jackets or sleeping bags and that the applicant contends he did not steal any sleeping bags. The counselor states that the applicant needs medication and treatment from the DVA hospital for his Vietnam experience. He also contends that the applicant has no involvement with civilian authorities and is not known to abuse drugs or alcohol. The counselor further states that the applicant deserves a recharacterization of his discharge to fully medical under honorable conditions for entitlement to treatment at the DVA.

This statement is new evidence and will be considered by the Board.

There is no evidence in the available records which shows the applicant was diagnosed with any medical condition at the time of his separation on 29 July 1971.

There is no separation physical examination in the available records. However, the applicant's service personnel records contain a DA Form 3082-R (Statement of Medical Condition), dated 28 July 1971. This statement indicates that the applicant had a separation medical examination more than three working days prior to his separation. Also, the applicant acknowledged that to the best of his knowledge, since his last examination, there had been no change in his medical condition.

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.

Army Regulation 635-40, paragraph 3-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a 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 (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

Army Regulation 15-185 also provides further guidance for reconsideration requests that are received more than 1 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.

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 evidence of record does not support the DVA counselor's contentions that the applicant's instances of discipline were more indicative of his immaturity and his PTSD, rather than a pattern of failure to adjust to military service.

2. Evidence of record shows that the applicant had served approximately two years of military service and that he was almost 20 years old when he committed the offenses.

3. There is no evidence of record available to the Board, and the applicant has provided no evidence, which shows that he was diagnosed with any psychologicial condition prior to his separation on 29 July 1971.

4. Evidence of record shows the applicant was discharged as a result of a general court-martial, not for failing to adjust to military service.

5. The Board noted the contentions that the applicant does not recall his general court-martial charges, that he did not know anything about the field jackets or sleeping bags and that he did not steal any sleeping bags. However, the applicant's general court-martial order shows that he pled guilty to the confining offenses (theft of government property (60 field jackets and 32 sleeping bags) and wrongful sale or disposition of the property).

6. The Board also noted the DVA counselor's contentions pertaining to the applicant's good post service conduct. However, good post service conduct alone is not a basis for upgrading a discharge.

7. The Board further noted the counselor's contention that the applicant deserves a recharacterization of his discharge for entitlement to treatment at the DVA. However, the Board does not grant relief solely for the purpose of obtaining medical benefits.

8. The Board reviewed the applicant's record of service which included one general court-martial conviction for theft of government property (60 field jackets and 32 sleeping bags) and wrongful sale or disposition of the property and
72 days of lost time due to confinement and determined that his quality of

service did not meet the standards of acceptable conduct and performance for Army personnel. Therefore, the Board determined that clemency in the form of an honorable discharge was not warranted in this case.

9. The Board also determined that the gravity of the offenses for which the applicant received a general court-martial conviction were too serious to grant clemency in the form of a general discharge.

10. The Board considered the applicant's contention that he should have been given a medical discharge. However, service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty. Accordingly, the applicant was discharged from active duty as the result of a general court-martial conviction, not as the result of a medical condition.

11. 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.

12. In view of the foregoing, there is no basis for granting the applicant's requests.

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

TBR_____ LDS____ JTM_____ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002080133
SUFFIX
RECON	Yes
DATE BOARDED	20030501
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19710729
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.	108.0000
3.
4.
5.
6.