MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 June 2003
         DOCKET NUMBER: AR2003084336

         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. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Lester Echols		Member
Mr. Lawrence Foster		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 honorable.

APPLICANT STATES: He was wounded in battle and not awarded the Purple Heart (PH) due to the racist attitudes of the individual who was responsible for processing award requests. The basis of his undesirable discharge was petty offenses such as being in an unauthorized area, which was consistent with the conduct of a 19 year old. He adds that “No relief has ever been processed due to transportation problems nor did I know any relief was available.”

In a letter to the Army Discharge Review Board (ADRB), the applicant stated that he enlisted at the age of 17 with an 8^th grade education. After he enlisted, he earned a General Educational Development (GED) Certificate, achieving the highest possible score in the process. He was awarded the military occupational specialty (MOS) of clerk, and was assigned to a unit in Germany. He was very pleased with his assignment. However, his assignment to that unit was cut short when he was court-martialed for an altercation he had with a soldier who made racist remarks. After his confinement, he was reassigned to another unit in Germany.

He was later assigned to a unit in Vietnam, where he functioned quite well for 6 months. However, his first sergeant (1SG) was a “redneck” who began picking on him by giving him hazardous details and impossible tasks. When he complained about the 1SG’s behavior to the company commander, the situation became worse. He then became hostile, confused and contemplated desertion. He was then set up to be arrested and incarcerated by his 1SG, and he ran away from his unit. He later called his battalion commander and told him of his problem with the 1SG, and his battalion commander told him to return to the unit and he would have him on a plane back to the United States the same day. He was then incapable of making an intelligent decision, and accepted the offer. It wasn’t until he was in the United States that he realized that he was issued an undesirable discharge.

The applicant also addressed his PH in the letter to the ADRB, stating that his name was misspelled on his PH orders, and his racist 1SG refused to give him his medal. The applicant adds that he has had a drug problem since he left Vietnam, and could never afford the treatment to help him get clean and sober. He is currently serving a term of life without parole in prison, a sentence he considers illegal.






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

He enlisted in the Regular Army at age 17 on 8 July 1968. He had an Armed Forces Qualification Test (AFQT) score of 20. He was awarded the military occupational specialty of clerk.

He was assigned to a unit in Germany on 11 January 1969. While in Germany, he was convicted by a special court-martial of “Committ[ing] an assault upon [another soldier] by cutting him in the face with a dangerous weapon likely to produce bodily harm, to wit: a drinking glass.” His sentence consisted of a forfeiture of $68.00 a month for six months, a reduction from pay grade E-2 to
E-1, and confinement at hard labor for six months, three months of which were suspended.

He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 2 October 1969 for being absent without leave (AWOL) for a day.

He again accepted NJP on 21 October 1969 for being AWOL for a day.

On 26 January 1970, the applicant was assigned to Vietnam.

On 28 May 1970, the applicant accepted NJP for, “in an inattentive manner” attempt to start a truck while not being completely inside the truck, which caused the truck to strike and injure a Vietnamese civilian.

On 22 July 1970, the applicant was given a psychiatric examination. Although the psychiatrist determined that the applicant did not suffer from any mental defect, he did suffer from a character and behavior disorder, a condition which did not warrant processing through medical channels. The psychiatrist added that “In my opinion this individual is and was mentally responsible, able to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in board proceedings.”

On 23 July 1970, the applicant accepted NJP for impersonating a staff sergeant.

On 28 July 1970, the applicant’s commander notified him of his intent to recommend his discharge due to unfitness, and of his rights in conjunction with that recommendation. In that notification, the applicant was informed by his commander that he was recommending that he be issued an undesirable




discharge. The applicant waived all of his rights except for submitting a statement in his own behalf.

In the statement submitted by the applicant, he outlines his successes in the military, and how an undesirable discharge would adversely affect his future and his ability to provide for his wife and ailing mother.

On 28 July 1970, the applicant’s commander forwarded a recommendation to discharge the applicant for unfitness.

That recommendation was approved and the applicant was returned to the United States and issued an Undesirable Discharge Certificate. He had 1 year, 11 months and 10 days of creditable service and 74 days of lost time.

On 10 May 1974, the ADRB denied the applicant’s request to upgrade his discharge.

On 6 April 1988, this Board denied the applicant’s request for award of the PH.

On 18 February 1999, the staff of the Board administratively closed the applicant’s request for reconsideration of the Board’s denial of his request for the PH because he had not submitted any new evidence.

Army Regulation 15-185, sets forth the procedures for processing requests to correct military records. Paragraph 2-15b provides specific guidance to be applied in cases involving requests for reconsideration 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 to the applicant without action.

The AFQT is a general intelligence test composed of multiple choice questions. Individuals taking the test are grouped in five mental groups; category V, scores 0 - 9, unacceptable for enlistment; category IV, scores 10 - 30, below average intelligence; category III, scores 90 - 109, average intelligence; category II, scores 110 - 129, above average intelligence; and category I, scores 130 - 150, excellent intelligence.




DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. The applicant has not submitted any new evidence to support his request for the PH. As such, the Board has not considered that portion of the applicant’s request.

2. As for the applicant’s request to upgrade his discharge, he accepted NJP on four occasions and was convicted by a special court-martial. Such a record of misconduct clearly warranted an undesirable discharge.

3. As for the applicant’s contention that all of his offenses were minor in nature, the Board does not consider going AWOL, injuring a civilian due to gross negligence, or assaulting a fellow soldier with a dangerous weapon minor offenses.

4. As for the applicant’s 1 year and 11 months of creditable service, his record clearly shows that he was a disciplinary problem for the majority of that time. As such, this service does not mitigate his undesirable discharge.

5. Likewise, the applicant’s low AFQT score is not mitigating in this case. The psychiatrist stated that the applicant knew right from wrong and could adhere to the right. Since this is a case of misconduct and not ineptness, his low intelligence score is not a factor in determining whether the applicant’s characterization of service was an injustice.

6. The applicant has submitted many “reasons” for his misconduct, but does not submit any evidence to substantiate his allegations. However, even if he had submitted substantiating evidence, it would not justify his misconduct. The Army has systems designed to address soldier’s complaints, such as the Inspector General (IG), the Military Police and the chain of command. If a soldier makes a racist remark, that soldier should have charges brought against him, not be assaulted with a dangerous weapon. If a senior noncommissioned officer is abusing his rank, the chain of command should be apprised of that abuse and, if relief isn’t obtained by the chain of command, the IG may then be requested to intercede.

7. Since the misconduct of others does not justify misconduct, the applicant has no excuse for the actions which led to his undesirable discharge.





8. 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

___lf ___ ___wtm _ ____le__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084336
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030626
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.