MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 April 2003
         DOCKET NUMBER: AR2002081152

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Curtis L. Greenway		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: That his undesirable discharge be upgraded to a general discharge.

APPLICANT STATES: In effect, that he voluntarily enlisted in the Army, that he served his country and was wounded in action and now has health problems in which he needs his country to help with. He further states that at the time he believed that he was helping another soldier by giving him a ride and did not know it was his intention to commit a criminal act. Therefore, he should not be held accountable for the other soldier's actions because he was a victim of circumstances. In support of his applications he submits three third party character references.

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

He enlisted in Louisiana on 21 January 1970, for a period of 3 years and was transferred to Fort Polk, Louisiana, to undergo his training. He successfully completed his training and was transferred to Vietnam on 24 June 1970, for duty as a light weapons infantryman. He was advanced to the pay grade of E-3 on 26 June 1970.

On 8 September 1970, he was awarded the Combat Infantryman Badge.

On 1 January 1971, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 14 October to 25 October 1970, for missing movement on 10 December 1970, and for being disrespectful towards a commissioned officer. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 60 days) and a forfeiture of pay.

Although the record of NJP is not present in the available records, his records contain an order showing that NJP was imposed against him again on 5 January 1971 for misconduct and that he was reduced to the pay grade of E-1 on that date.

On 7 March 1971 he was wounded in action and was medically evacuated first to a hospital in Japan and then to Fort Polk. He was awarded the Purple Heart on 22 March 1971.

On 30 July 1971, while assigned to the Medical Holding Company, NJP was imposed against him for being AWOL from 15 July to 30 July 1971. His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay.

The applicant was transferred to Fort Carson, Colorado, on 24 August 1971.

On 7 February 1972, NJP was imposed against him for striking a superior noncommissioned officer in the face with his fist at least two times. His punishment consisted of a reduction to the pay grade of E-2 and extra duty.

On 3 April 1972, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of extra duty for 14 days and a forfeiture of pay (suspended for 60 days).

On 7 August 1972, he pled guilty and was convicted by a special court-martial of stealing a Panasonic Stereo Set belonging to another soldier. He was sentenced to a reduction to the pay grade of E-1, confinement at hard labor for 105 days and thereafter to perform hard labor without confinement for 30 days. The convening authority approved the sentence and suspended all but 41 days of the portion of the sentence as pertained to confinement at hard labor.

Although not specified in the available records, they show that he was confined by civil authorities from 27 November to 27 December 1972.

The facts and circumstances surrounding his administrative discharge are not present in the available records. However, his records do contain a duly constituted report of separation (DD Form 214) signed by the applicant which shows that he was discharged under other than honorable conditions on 13 February 1973, under the provisions of Army Regulation 635-200, chapter 13, for unfitness, due to his frequent involvement in incidents of a discreditable nature with civil/military authorities. He had served 2 years, 9 months and 15 days of total active service and had 98 days of lost time due to AWOL and confinement.

His records also contain a letter of inquiry (Request for Information) from the Colorado Department of Institutions (Colorado State Reformatory) requesting information regarding his Army service because he was serving as an inmate of that institution at the time and had claimed Army service. The letter is dated 7 May 1973, 3 months after his discharge.

There is no evidence in the available records to show that he ever applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 13 established policy and procedures for separating personnel for unfitness. Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense. A discharge under other than honorable conditions was normally considered appropriate.
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 the absence of evidence to the contrary, it must be presumed that his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3. The Board has noted the applicant's contentions and supporting documents as well as his service in Vietnam. However, the applicant has failed to convince the Board through the evidence submitted or the evidence of record that his service is not appropriate characterized when his record of misconduct is considered.

4. While the applicant did serve and was wounded in Vietnam during his 10 months in that theater of operation, such service does not constitute a right to engage in continual misconduct nor does it serve as an automatic basis for an upgrade of a duly constituted discharge.

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

___mm__ ___clg __ ___mb __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002081152
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/04/17
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1973/02/13
DISCHARGE AUTHORITY	AR635-200/CH13
DISCHARGE REASON	UNFIT
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 583	144.5000/a51.00
2.
3.
4.
5.
6.