MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 July 2003
         DOCKET NUMBER: AR2002082191

         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. John P. Infante		Member
Ms. Yolanda Maldonado		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 (UD) be upgraded to a fully honorable discharge (HD).

APPLICANT STATES: In effect, he was hospitalized twice during basic training; that his commander asked him if he wanted to be released from the Army and he requested to go to Vietnam. He was separated after 5 months of service. He also states that he is making this request because he is laid off from work and he desires to obtain veterans educational benefits. The applicant submits in support of his request seven character reference statements that indicate he is a reliable, trustworthy, caring, sharing person devoted to his family, church and community. He also submits a Report of Psychiatric Evaluation, dated 14 October 1968.

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

He enlisted in the Regular Army for a period of 2 years on 28 December 1967. On 6 January 1968, he was assigned to Fort Leonard Wood, Missouri, for basic combat training.

A line of duty investigation, dated 27 February 1968, shows that on 2 February 1968, the applicant picked up a razor blade from his locker in his barracks room and cut his right foot. The injury was determined not to be in the line of duty, due to misconduct. The applicant was hospitalized on the psychiatric ward and observed after this incident.

On 13 April 1968, the applicant was further evaluated in the Neuropsychiatric Clinic, Fort Leonard Wood, as a result of the above injury. The examining official determined that although, the applicant volunteered to serve in the Army, he was poorly motivated to make the necessary adjustments for a successful military life. He showed no signs of depression, but he had mentioned in the past he would kill himself to get out of the Army. The examining official believed this type of acting out was within the realm of the applicant's personality and, although he had no desire to kill himself, it could accidentally happen. Therefore, the applicant was of little use to the Army given his attitude.

On 27 March 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 his unit from 16-21 March 1968 and for failure to obey a lawful order given by a noncommissioned officer on 18 March 1968. His punishment included the forfeiture of $30.00 pay per month for 1 month and 30 days of restriction.

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On 21 May 1968, the applicant was convicted by a special court-martial (SPCM) of stealing money, of a value of about $5.00, from another soldier on 4 May 1968 and of willfully disobeying a lawful order on 7 May 1968. His sentence included confinement at hard labor for 6 months and forfeiture of $63.00 pay per month for 6 months.

The applicant remained in military confinement at the Post Stockade, Fort Leonard Wood from 7-31 May 1968. He escaped from confinement and was AWOL from 1-10 June 1968. On 12 July 1968, he was convicted by a SPCM of escaping from confinement. His sentence included confinement at hard labor for 6 months and forfeiture of $63.00 pay per month for 6 months.

On 10 September 1968, the commander notified the applicant that he was being recommended for separation under the provisions of Army Regulation 635-212, based on the above misconduct offenses. He was also notified of the rights available to him.

On 13 September 1968, the applicant authenticated a statement with his own signature in which he acknowledged he had consulted with legal counsel and he acknowledged he had been advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-212, for unfitness. He further acknowledged he understood the effects of a UD and that he would be ineligible to receive veteran's benefits. He also waived further representation by legal counsel and a personal appearance before a board of officers. He did not submit a statement in his own behalf.

On 14 October 1968, as part of the separation process, the applicant underwent a mental status evaluation. The applicant was determined to have a severe passive-aggressive personality disorder. His condition did not require hospitalization; it was not disabling and presented no disqualifying mental or physical defect sufficient to warrant medical processing. He was determined to be mentally responsible, able to both to distinguish right from wrong and adhere to the right, and to possess the mental capacity to understand and participate in board proceedings. The examining official stated that the applicant was not motivated for continued military service and recommended he be separated.

On 19 November 1968, the applicant underwent a medical examination and he was determined to be physically qualified for separation.

On 14 December 1968, a legal review by an officer of The Judge Advocate General's Corps determined the request was legally sufficient.

On 19 December 1968, the approval authority waived further rehabilitation, approved the recommendation and directed that the applicant be separated under the provisions of Army Regulation 635-212, for unfitness with a UD.
On 3 January 1969, the applicant was separated from the Correctional Holding Detachment in a trainee status under the provisions of Army Regulation 635-212, for unfitness with a UD. He had completed 4 months and 5 days of active military service. His DD Form 214 shows that he has 246 days of lost time due to being AWOL and in military confinement.

On 12 December 1972, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel and provided, in pertinent part, that members involved in a frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. A UD 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 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 applicant's administrative separation was accomplished in compliance with applicable regulations, then in effect, with no indication of procedural errors which would have jeopardized his rights. The applicant's service record fully supports both the reason for discharge and the characterization of his service. The applicant has provided no evidence to the contrary.

3. The applicant was hospitalized for a very short period and evaluated after he injured himself. Prior to being separated from active duty, he received both a physical examination and a mental status evaluation and he was determined to be fully qualified for separation. Further, he was determined to understand right from wrong and to be able to adhere to the right.

4. Eligibility for veteran's benefits, to include educational benefits, does not fall within the purview of this Board. The Department of Veterans Affairs determines eligibility for veteran's benefits.

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5. The applicant did not serve in Vietnam and there is no evidence available to suggest that he volunteered for service in Vietnam. The Board also noted the character references that the applicant provided, and congratulates the applicant on his accomplishments since he has been separated. However, neither the lack of veterans benefits, nor post-service conduct provides a basis for an upgrade of a discharge.

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.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__aao___ __jpi___ __ym____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082191
SUFFIX
RECON
DATE BOARDED	20030724
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19690103
DISCHARGE AUTHORITY	AR635-212
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5000
2.
3.
4.
5.
6.