MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 April 2003
         DOCKET NUMBER: AR2003084910

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Thomas Lanyi		Member
Mr. Bernard P. Ingold		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 general.

APPLICANT STATES: In effect, that he was discharged due to a civil problem after serving over 2 years. He now needs his discharge to be changed to a general in order to receive medical treatment.

The applicant submitted a copy of the letter he wrote to his Member of Congress (MOC) asking him to intervene and a number of other documents including a copy of his DD Form 214, Report of Transfer or Discharge, a Standard Form (SF) 600, Chronological Record of Medical Care, which shows that he reported to a Troop Medical Clinic (TMC) representative that he suspected he had Hepatitis; a SF 89, Report of Medical Examination, and a SF 93, Report of Medical History, both dated 21 November 1972, and completed for the purpose of his discharge from active duty; 4 character reference letters, 2 of which are unsigned, in support of his application.

In the 2-page letter to his MOC, the applicant gives a summary of his life's achievements and describes difficulties he is now facing. Key and important issues that are related to this discharge upgrade are that, he alleges being a Vietnam Veteran who has been diagnosed with Hepatitis C and who now needs his discharge upgraded so that he can get treatment for his disease from the Department of Veterans Affairs (VA). He admits that his actions during his enlistment were not all honorable but he was young and got in with the wrong crowd trying to fit in.

In the character reference document from his former employer, his former employer wrote that he has known him for from 20 to 25 years. He has known him to be the consummate businessman with incredible talent for whatever business he was involved in.

A business associate and friend, a certified public accountant, wrote that he has known the applicant for over 10 years and has always known him to be a good businessman and honorable citizen who is always willing to serve his community in scouting and church activities.

Another friend, who provided a character reference by e-mail, stated that he and the applicant have been close friends since the mid-90s. He describes the applicant as an honorable, devoted family man and good friend on whom he could call, and could always count on his being there.

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Yet another of his friends, in an unsigned e-mail, describes him as a mentor and a positive influence in his life.

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

The applicant enlisted in the Regular Army for 2 years on 5 February 71. On
11 February 1971, the applicant voluntarily extended his 2-year enlistment for 1 year to a period of 3 years to qualify for an MOS (Military Occupational Specialty) producing training course. He completed basic combat training at Fort Lewis, Washington, and his advanced individual training at Fort Lee, Virginia. At the completion of his training, he was awarded the MOS 76W, Petroleum Storage Specialist.

He was assigned, as a Petroleum Storage Specialist, to the US Army Alaska. The applicant was assigned to the US Army Alaska from 6 July 1971 until 6 April 1973. There is no evidence that the applicant served in the Republic of Vietnam during his service in the Army either as permanent party or on a temporary duty basis.

The applicant’s record shows that the highest rank and pay grade he held on active duty was Private First Class, E-3. The record contains no documented acts of valor, achievement, or service warranting special recognition.

On 1 November 1971, the applicant received a Letter of Reprimand for his grossly inappropriate conduct during the playing of the National Anthem in the post theater. He failed to show proper respect to the National Anthem by not coming to attention and facing in the direction of the music. The applicant acknowledged the Letter of Reprimand and declined the opportunity to submit a rebuttal statement on 26 November 1971.

On 10 December 1971, the applicant received an Article 15 under the provisions of the Uniform Code of Military Justice (UCMJ) for having absented himself from his place of duty, Bryant Army Airfield, on 2 December 1971. As his punishment, he was reduced to the rank and pay grade, Private, E-2, and a forfeiture of $75.00 per month for one month (suspended for 60 days). On 16 December 1971, the applicant appealed the punishment. The appeal was denied on
5 January 1972.

The applicant received an Article 15 on 9 February 1972. Although he was found guilty, the commander did not impose any punishment. Instead, he vacated the suspension of forfeiture of $75.00 per month for one month that had been imposed on him in the Article 15 that was administered on 10 December 1971.

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The applicant received a special court-martial and was found guilty of being absent without authority from 31 January 1972 until 17 February 1972. The applicant was sentenced to confinement at hard labor for 20 days, to forfeit $150.00 pay per month for one month, and to be reduced to Private, E-1. The sentence was adjudged on 21 March 1972 and approved and ordered executed on 7 April 1972.

The applicant visited the TMC at Fort Wainwright, Alaska, on 19 October 1972. According to the entry made on a SF 600, it was the applicant who informed the clinic representative that he suspected that he had Hepatitis. The attending physician noted that the applicant had not had close contact with Hepatitis and prescribes Actifed and Robitusin. There are no other entries to show that the applicant later visited the TMC for suspicion of the same disease. There is no evidence that the physician followed up the applicant's suspicions by ordering diagnostic laboratory tests that would confirm the applicant's suspicions.

The "packet" containing details of the applicant's discharge from the Army is not on file in his service personnel records; however, copies of DA Form 268, Report of Suspension of Favorable Personnel Action, related to the applicant's discharge were available for the Board's review.

DA Form 268, dated 28 August 1972, shows that the applicant was pending charges in Fairbanks District Court for attempted grand larceny, which was committed on or about 0120 hours, 10 August 1972. The individual was released from civil custody on his own recognizance in lieu of a $3,000.00 bail bond.

A second DA Form 268, dated 26 October 1972, noted that the applicant pled guilty to the charges and was awaiting sentencing.

A third DA Form 268, dated 14 December 1972, noted that the applicant was convicted by the District Court and was sentenced to 1-year probation.

A fourth DA Form 268, dated 14 December 1972, noted that the applicant was being processed for separation from the Army under the provisions of Army Regulation 635-206 for this civil conviction.

A fifth DA Form 268, dated 9 February 1973, noted that the applicant appeared before a board of officers that was convened on 2 February 1973 and was awaiting the results of the board.

A final DA Form 268 was submitted on 3 April 1973 and noted that the Commander, US Army Alaska, had approved the applicant's discharge under the provisions of

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Army Regulation 635-206 on 29 March 1973. He was transferred to Fort Lewis for discharge on 6 April 1973.

The applicant was discharged in the rank and pay grade, Private, E-1, with an undesirable discharge on 10 April 1973 under the provisions Army Regulation 635-206. The applicant's character of service was characterized as under other than honorable conditions. He was awarded SPN (separation program number) code, 284, which identifies individuals who are discharged due to conviction by civil court or adjudged to be a juvenile offender during the current period of active duty. On his discharge date, the applicant had 2 years, 1 month and 3 days of creditable service and 33 days lost time.

In a Tissue Report prepared by Pathology Associates of Idaho Falls, dated
23 August 2000, which the applicant provided, shows the applicant was diagnosed as having Chronic Hepatitis C when he underwent a liver biopsy. In both the SF 88 and 93 that were completed, on 21 November 1972, in conjunction with his separation physical examination, the applicant entered, in his own hand, "I am in good health."

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 is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.

2. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. There is no evidence that a medical condition caused his misconduct.

3. The character reference letters submitted by the applicant from his friends concerning his post service conduct is noted but these matters do not outweigh the offenses that led to his discharge nor do they demonstrate an error or an injustice in the discharge. They are not so exceptionally meritorious as to warrant the requested relief.

4. 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.

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5. There is no evidence that the applicant is a Vietnam Veteran. There is no evidence that the applicant served in the Republic of Vietnam in either a permanent party role or on temporary duty. The applicant is a veteran who served during the Vietnam Era.

6. Even though the applicant presented himself to the medical clinic with what he suspected was hepatitis, the attending physician did not agree and make that diagnosis. The applicant was, according to evidence, not diagnosed as having this disease until August 2000, more than 27 years after his discharge.

7. The Board sympathizes with the applicant and understands his desire to have his undesirable discharge upgraded to enable him to receive medical treatment from the VA however, the Board does not grant relief solely for the purposes of qualifying an applicant for medical benefits.

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

__jns___ __tl____ __bpi___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084910
SUFFIX
RECON
DATE BOARDED	20030429
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19730410
DISCHARGE AUTHORITY	AR 635-206
DISCHARGE REASON	A61.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.0133
3.	144.0144
4.	144.6100
5.
6.