MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 August 2003
         DOCKET NUMBER: AR2002080243

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern, III		Member
Ms. Mae M. Bullock		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: The applicant requests that his General Discharge (GD) be upgraded to an Honorable Discharge (HD).

APPLICANT STATES: That the sentence he received from his special court-martial conviction was "suspended under remission." In support of his application, the applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and a letter of support from the Martin County (Florida) Director of Veterans Services.

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

That he enlisted in the Regular Army for 3 years on 26 September 1966. Following completion of all required military training in February 1967, he was awarded military occupational specialty (MOS) 11B, Light Weapons Infantryman. In March 1967, he completed the Basic Airborne Course, was awarded the Parachutist Badge, and was then assigned to Fort Bragg, North Carolina, with duties as an airborne infantryman.

The applicant was ordered to Vietnam, arriving there on/about 27 October 1967. On 15 November 1967, he was assigned to the 101st Airborne Division. On 18 April 1968, the applicant was seriously wounded in action while serving with Company B, 2nd Battalion, 327th Infantry, 101st Airborne Division. He was medically evacuated to Letterman General Hospital, San Francisco, California. He was awarded the Bronze Star Medal with V Device and the Purple Heart.

On 29 July 1968, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for being AWOL from Letterman General Hospital from 24-28 July 1968. His punishment included forfeiture of $40.00 pay per month for 1 month.

On 19 August 1968, the applicant was advanced from pay grade E-3 to pay grade E-4. On 21 August 1968, he was reassigned from Letterman General Hospital to Fort Knox, Kentucky, and returned to normal duty.

The applicant was AWOL from his unit from 16-21 July 1969 and 26-28 July 1969. On 31 July 1969, he was reduced from pay grade E-4 to pay grade E-2 by Special Orders Number 235, Headquarters, 194th Armored Brigade, Fort Knox. Although evidence is no longer in the records, it appears the reduction was as a result of NJP action for the above periods of AWOL.

On 23 September 1969, the applicant was convicted by a special court-martial of stealing, in October 1968, Government property, to wit: 2 multimeters of a value of about $34.70; a clock, message center, M2, of a value of about $151.00; a metal box, OD in color, containing one tray and assorted tools of a value of about $101.50. Further, at the same trial, he was convicted of stealing, in October 1968, private property, to wit: a typewriter, Smith Corona Poweriter, and a box containing Smith Corona changeable type letters of a total value of $527.39, the property of a lieutenant; and on 1 August 1969, a ceremonial sword blade and a silver hand piece of a value of $80.00, the property of a colonel. He was sentenced to reduction from pay grade E-2 to pay grade E-1; forfeiture of $50.00 pay per month for 3 months, and confinement at hard labor for 3 months. He remained in confinement from 5 August-20 October 1969, at which time the unexecuted portions of his sentence to confinement and forfeiture of pay were remitted.

On 24 December 1969, the applicant separated with a GD under the provisions of chapter 4, Army Regulation 635-200, due to expiration of his term of service (ETS). He had completed 2 years, 11 months and 29 days of creditable active service and he had 91 days of lost time due to being AWOL and in confinement. His DD Form 214 showed the following awards and decorations: National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Parachutist Badge, Expert Badge (Rifle), and a Certificate of Achievement.

A DD Form 1577 (Authorization for Issuance of Awards) was prepared on 21 May 1993 by the Army Reserve Personnel Center (ARPERCEN), St. Louis, Missouri. It shows that, in addition to those awards listed on his DD Form 214, the applicant is entitled to the Bronze Star Medal with 1 oak leaf cluster, the Purple Heart, the Combat Infantryman Badge, and the Vietnam Gallantry Cross with Palm Unit Citation. On 6 March 2003, historical records at the National Archives and Records Administration, College Park, Maryland, were reviewed and no evidence was found to substantiate entitlement to any additional awards.

The applicant's DA Form 20 (Enlisted Qualification Record) shows that between September 1966 and August 1968, his conduct and efficiency was rated "excellent" five times. During the period 21 August 1968 to 27 October 1968, his conduct and efficiency was "unsatisfactory." From 28 October 1969 to his ETS on 24 December 1969, he was rated as "satisfactory" in both areas.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel and provided that a soldier's service would be characterized based on the overall enlistment period and conduct. Chapter 4 of that regulation provided, in pertinent part, that a soldier separated upon ETS would be awarded a character of service of honorable, when the soldier's conduct ratings were at least "Good," the efficiency ratings were at least "Fair," the soldier had not been convicted by a general court-martial or not more than one special court-martial conviction. Today, Army Regulation 635-200 states that a soldier being separated at ETS will be awarded an HD unless in an entry-level status.


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. 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.

2. The Board agrees with the discharge authority and concludes the applicant's characterization of service is proper and equitable. The overall quality of the applicant's service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. Although Army Regulation 635-200 changed in the 1970's to mandate an HD for all soldiers who served to ETS, there is nothing, which requires that current standards be applied retroactively.

3. Further, the Board concludes the applicant's Vietnam service and the awards that he received appear to have formed the basis for award of a GD, given his repeated misconduct offenses which would have been justification for an other than honorable separation.

4. The applicant has provided no independent, corroborating evidence to demonstrate that either the theft of military property or his repeated AWOL offenses were the result of readjustment problems. Even if the applicant experienced problems, he had many other legitimate avenues through which to obtain assistance without committing the misconduct, which led to the GD that he received.

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

__aao___ __tbr___ __mmb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002080243
SUFFIX
RECON
DATE BOARDED	20030807
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19691224
DISCHARGE AUTHORITY	AR635-200, Chap
DISCHARGE REASON	A01.33
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.0133
2.
3.
4.
5.
6.