MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 June 2003
         DOCKET NUMBER: AR2002083626

         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. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern		Member
Ms. Karen A. Heinz		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: In three separate applications, that his undesirable discharge be upgraded to an honorable or a general discharge.

APPLICANT STATES: That he is a Vietnam veteran and when he returned to the United States he was stationed at Fort Ord, California, he was discharged as a result of fighting for his life with “black people”. He states that he was unjustly discharged because he was suffering from to post traumatic stress disorder (PTSD) and that he should have a right to full benefits with the Department of Veterans Affairs. He goes on to state that it is an injustice for him to continue to suffer the adverse consequences of a bad discharge and that under current standards he would not have received the type of discharge that he received. He states that he had a good record until he returned to the United States and that while he was in Vietnam he was awarded the Good Conduct Medal and the Army Commendation Medal. He states that he was close to finishing his tour of duty; that he has one prior honorable discharge that should also be considered; and that his immaturity and use of drugs and alcohol contributed to his problems. He states that there are many errors in his records to include the length of time that he spent in Vietnam and that his discharge should have been honorable or general. In support of his application he submits a copy of the certificate awarding him the Army Commendation Medal and a copy of his estimated Social Security Benefits.

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

On 29 August 1969, he enlisted in the Army in Portland, Maine for 3 years in the pay grade of E-1. He successfully completed his training as a motor transportation operator. He was promoted to the pay grade of E-2 on 29 December 1969.

He was transferred to Vietnam on 31 January 1970. He was promoted to the pay grade of E-3 on 18 February 1970 and to the pay grade of E-4 on 8 June 1970. He returned to the Continental United States and he was assigned at Fort Ord, California on 3 February 1971.

His awards include National Defense Service Medal, the Vietnam Service, the Vietnam Campaign Medal, the Army Commendation Medal and the Sharpshooter Marksmanship Badge w/rifle bar.

Nonjudicial punishment (NJP) was imposed against the applicant on 1 July 1971, for wrongfully appropriating a 5/4-ton vehicle, the property of the Army. His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay in the amount of $24.00, 7 days of restriction and 7 days of extra duty.

On 8 July 1971, NJP was imposed against him for failure to go to his appointed place of duty on 5 July 1971. His punishment consisted of a forfeiture of pay in the amount of $25.00.

On 22 July 1971, NJP was imposed against him for failure to go to his appointed place of duty. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay in the amount of $25.00, 14 days of restriction and 14 days of extra duty.

The applicant had NJP imposed against him again on 30 July 1971, for failure to go to his appointed place of duty on two separate occasions on 23 July 1971. His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay in the amount of $21.00.

On 25 August 1971, NJP was imposed against the applicant for failure to go to his appointed place of duty. His punishment consisted of extra duty for 14 days.

On 1 September 1971, the applicant underwent a psychological evaluation and the psychology specialist determined that his behavior had been deteriorating as a result of drug use of all types, including opium and heroin, and because his parents had been divorced. The psychology specialist stated that since the applicant’s return from Vietnam, he had been stationed at Hunter Liggett Military Reservation (HLMR) and Fort Ord and that during his 6-months stay at HLMR, he had been continuing his drug use as his only means of adapting to the military environment. The psychology specialist went on to state that the applicant was sent to Fort Ord as a rehabilitative measure and that his continued use of marijuana and by continuing to receive Article 15’s shows that he is unable to copy with the rigors of the military. The psychology specialist recommended that he be discharged under the character and behavior disorders provisions as set forth by the provisions of Army Regulation 635-212.

On 1 October 1971, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-212, based on unfitness. The commanding officer stated that on 15 February 1971, the applicant was apprehended by civil authorities for possession of marijuana and that he had also received NJP on 30 August 1971, for being intoxicated while performing motor pool duties. The commander went on to state that right after he had imposed NJP against him, he had to be taken to the hospital for taking an overdose of barbiturates. The commander stated that he had imposed NJP against him again on 5 October 1971, for failure to go to unit formation and the numerous officers and noncommissioned officers had repeatedly attempted to dissuade him; however, he adamantly insisted that the Army “fire” him. The commander recommended that he be issued an undesirable discharge.

The applicant acknowledged receipt of the notification on 5 October 1971 and after consulting with counsel, he waived his rights and he opted not to submit a statement in his own behalf.

The appropriate authority approved the recommendation for discharge on 7 October 1971. Accordingly, on 28 October 1971, the applicant was discharged under the provisions of Army Regulation 635-212, based on unfitness. He had completed 2 years, 1 month and 26 days of total active service and he was furnished an Undesirable Discharge Certificate.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge 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. 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.

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

3. The Board has noted the applicant’s contentions; however, there is no evidence of record that shows that he was ever punished for fighting while he was in the Army or that he was ever diagnosed with PTSD. However, his records do clearly show that he had alcohol and drugs problems. Attempts to rehabilitate him were unsuccessful, as he had no desire to be rehabilitated. He had NJP imposed against him on seven separate occasions for his acts of misconduct and his actions showed that he truly desired to be “fired” by the Army. The type of discharge that he received is commensurate with his overall record of service.

4. The Board has considered the applicant’s service in Vietnam, his age and his post service conduct; however, none of these factors, either individually or in sum, are sufficiently mitigating to warrant an upgrade of his discharge.

5. In view of the applicant's numerous acts of indiscipline, it does not appear that his UD was too severe or unjust.

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

__tbr____ ___kh___ ___ao___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003082636
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/06/05
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1971/10/28
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	583
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 594	144.5300
2. 592	144.5100
3.
4.
5.
6.