MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 16 October 2003
                  DOCKET NUMBER: AR2003090241

         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. Arthur A. Omartian		Chairperson
Mr. Hubert O. Fry		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: In effect, that his undesirable discharge be upgraded to honorable.

APPLICANT STATES: In effect, that his discharge was upgraded to a general discharge in 1977, but was never affirmed and he now desires to have it upgraded to honorable. He goes on to state that he served his country honorably in Vietnam, saw a lot of action and was wounded three times; however, he never received the Purple Heart. He further states that when he returned to the United States, he was assigned to an infantry outfit that did nothing but play war games and as a combat veteran he could not deal with it. He continues by stating that his company commander did not like him and endeavored to kick him out of the Army. He also states that after his discharge he went on to become a police officer for 26 years with numerous commendations, that he has three wonderful children, has had open heart surgery, pancreatic cancer surgery and now wants his country to give him what he deserves, an honorable discharge. He also contends that his only offense was being absent without leave (AWOL) and that was because he couldn't cope with duty after returning from Vietnam.

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

He enlisted with parental consent in Boston, Massachusetts, on 31 July 1964, for a period of 3 years under the "Buddy Assignment Plan." He was transferred to Fort Dix, New Jersey, to undergo his basic combat training (BCT).

He went AWOL on 30 August 1964 and remained absent until 4 September 1964. On 10 September 1964, nonjudicial punishment (NJP) was imposed against him for the AWOL offense and his punishment consisted of a forfeiture of pay and restriction. The applicant was recycled to another BCT company.

He completed his BCT and remained at Fort Dix to undergo his advanced individual training (AIT) as a light weapons infantryman. He again went AWOL on 6 November 1964 and remained absent in a deserter status until he was returned to military control on 11 December 1964, where charges were preferred against him for the AWOL offense.

He was convicted by a summary court-martial of the AWOL offense on 18 January 1965 and he was sentenced to confinement at hard labor for 1 month (suspended) and a forfeiture of pay.

He completed his AIT and was transferred to Fort Devens, Massachusetts, on 5 February 1965. He was assigned to the 2^nd Brigade, 5^th Infantry Regiment for duty as a light weapons infantryman.

On 26 August 1965, NJP was imposed against him for being AWOL from 4 August to 19 August 1965. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, extra duty and restriction.

He was transferred with his unit to Vietnam on 25 September 1965 and remained there until 1 May 1966, when on ordinary leave following temporary duty as an escort of the remains of a hometown buddy who was in the same unit and killed in action on a mission with the applicant, the applicant received a compassionate reassignment to Fort Devens.

On 21 June 1966, NJP was imposed against him for being AWOL from 31 May 1966 to 9 June 1966. His punishment consisted of a forfeiture of pay and extra duty.

He again went AWOL from 25 June to 21 July and 9 August to 17 August 1966. He was convicted by a special court-martial of the AWOL offenses on 8 September 1966. He was sentenced to a forfeiture of pay.

The applicant again went AWOL from 19 October to 23 October 1966 and NJP was imposed against him on 18 November 1966. His punishment consisted of a reduction to the pay grade of E-3.

He then went AWOL from 13 December 1966 to 4 January 1967, from 2 February to 4 April 1967, from 19 April to 20 April 1967. The record is silent as to any punishment imposed for those AWOL offenses.

On 1 May 1967, the applicant's commander notified him that he was considering recommending him for separation from the service for unfitness under the provisions of Army Regulation 635-212. After consulting with counsel, he waived all of his rights and declined the opportunity to submit a statement in his own behalf.

Meanwhile, the applicant underwent a psychiatric examination on 2 May 1967. When questioned by the psychiatrist as to why he continued to go AWOL, the applicant responded to the effect that he did not like the Army. The psychiatrist also indicated that he had seen the applicant previously in June 1966 for what was described as uncontrollable anger manifested by breaking windows and destroying his own personal property. The psychiatrist also relayed that he had also seen the applicant in September 1966 when he had asked the psychiatrist to get him out of a scrape. In each instance the applicant wanted the psychiatrist to change his job and unit and it was explained to him that it was not the function of the clinic to help him in that way. In these instances, when the staff would not give in to his demands, the applicant would get up and leave stating that they could not help him. The psychiatrist declared him mentally responsible, able to distinguish right from wrong and to adhere to the right.

He again went AWOL from 15 May to 25 June 1967 and again the record is silent as to any punishment imposed.

On 30 June 1967, the applicant's commander submitted a recommendation to discharge the applicant from the service under the provisions of Army Regulation 635-212, for unfitness, due to frequent involvement in incidents of a discreditable nature with civil and/or military authorities. He indicated that the applicant had been assigned to nine different units, that he had been convicted by two courts-martials, that he was pending courts-martial for four AWOL offenses and that he had established a pattern of shirking his assigned duties through habitual absences and failed to knowingly discharge just indebtedness.

The appropriate authority approved the recommendation and directed that the applicant be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 31 July 1964, under the provisions of Army Regulation 635-212. for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. He had served 2 years and 4 months of total active service and had 214 days of lost time due to AWOL. His report of separation (DD Form 214) indicates that he was awarded the Combat Infantryman Badge and the Vietnam Service Medal.

He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge in 1972, contending that he returned from Vietnam with a bad case of nerves and that his company commander did not like him. The ADRB determined that he had been properly and equitably discharged and unanimously denied his request on 10 June 1974.

The applicant applied to the ADRB in 1977, requesting that his discharge be reviewed under the Department of Defense Special Discharge Review Program. The ADRB determined that he met the criteria of the program in that he had 24 months of active military service before his discharge and voted to upgrade his discharge to a general discharge on 1 June 1977.

On 13 April 1978, the ADRB re-reviewed the applicant's general discharge under the then new uniform standards for discharge review and voted unanimously not to affirm the applicant's discharge. The applicant was informed by a letter dated 20 July 1978, from The Adjutant General of the Army, that under a new law, his discharge would not qualify him for benefits under the Veterans Administration.

A review of the Vietnam Casualty Listing fails to indicate that the applicant was ever reported as a casualty. Additionally, there is no evidence in the available personnel and medical records to show that he was ever, wounded, injured or treated for wounds or injuries incurred in combat against the enemy.
Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. It provided, in pertinent part, that members who were involved in frequent incidents of a discreditable nature with civil and/or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.

On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between
4 August 1964 and 28 March 1973. This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

In October 1978, Public Law 95-126 was enacted. This legislation required the service Departments to establish historically consistent, uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs was required. Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify that the wound was a result of hostile action, that the wound must have required treatment by a medical officer, and that the medical treatment was made a matter of official record.

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 accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.

2. Accordingly, the type of discharge and the reasons therefore were appropriate considering the available facts of the case.
3. The Board has noted the applicant's contention that his misconduct began after his service in Vietnam and finds it to be without merit. The applicant's misconduct began as early as BCT and continued throughout his service. Accordingly, the Board finds no basis to affirm or further upgrade his discharge.

4. The Board has also noted his contention that he was wounded in Vietnam and finds that neither the evidence submitted with his application or the evidence of record support this contention. Therefore, absent evidence to the contrary, the Board finds no basis to award him the Purple Heart.

5. 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.

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

__mb ___ ___hof __ ____ao__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003090241
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/10/16
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1967/07/67
DISCHARGE AUTHORITY	AR635-212
DISCHARGE REASON	UNFIT FI
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 583	144.5000/A51.00
2.
3.
4.
5.
6.