MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 July 1999
         DOCKET NUMBER: AR1999022464

         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. Loren G. Harrell		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Curtis W. Barbee		Chairperson
Mr. James M. Alward		Member
Mr. Robert G. Hinkle		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: That he successfully completed his training and served on the front lines in Vietnam for his entire tour. He goes on to state that when he returned to the United States he had a hard time adjusting, that he had nightmares, and that he was receiving a lot of pressure from his family. He further states that he was the only means of support for his mother and three sisters and when he asked to be discharged he was refused; so he just went home and they gave him an undesirable discharge. He continues by stating that he was informed that it would be upgraded within 6 months and he has just discovered that such was not the case.

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

The applicant enlisted in Yonkers, New York on 6 December 1967 for a period of 3 years. At the time of his enlistment he indicated that his father was deceased and that his mother was residing in Mount Vernon, New York. He also indicated that he had three brothers and six sisters which ranged in age from 28 to 7 years of age and all resided in New York. It appears that the applicant was child number six in a family of 10 children.

The applicant successfully completed his training and was transferred to Vietnam on 23 May 1968 for duty as a light weapons infantryman. He was promoted to the pay grade of E-4 on 6 January 1969 and he served in Vietnam until 18 June 1969. He was awarded the Combat Infantryman Badge, the Air Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the Vietnam Gallantry Cross with palm. Upon completion of his tour he was transferred to Fort Benning, Georgia.

On 18 September 1969 nonjudicial punishment was imposed against the applicant for being AWOL from 4 September to 17 September 1969. His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay, and extra duty and restriction for 14 days.

Nonjudicial punishment was imposed against the applicant on 4 October 1969 for being AWOL from 19 September to 26 September 1969. His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay.

The applicant was convicted by a special court-martial on 17 February 1970 of being AWOL from 13 November 1969 to 27 January 1970. He was sentenced to confinement at hard labor for 30 days, reduction to the pay grade of E-1, and a forfeiture of pay.

The applicant again went AWOL on the following day (28 January 1970) and remained absent until he surrendered to military authorities at Fort Dix, New Jersey on 15 June 1970

The facts and circumstances surrounding the applicant’s discharge are not present in the available records. However, his records show that he was discharged under other than honorable conditions on 7 July 1970, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He had served 1 year, 9 months, and 16 days of total active service and had 232 days of lost time due to AWOL.

A review of the applicant’s records failed to reveal any evidence to show that the applicant had submitted a request for a hardship discharge or that he informed officials that he was the only means of support for his mother and sisters.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitation.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A condition of such a request is that the individual must state that they have been counseled and that they understand the consequences of their request and the effect that a discharge under other than honorable conditions may have on their benefits as well as the influence it may have in civilian life. Additionally, individuals are afforded an opportunity to submit a statement in their own behalf or to explain any mitigating circumstances that may have an effect on the type of discharge they receive. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is 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,

1. In the absence of evidence to the contrary, it must be presumed that the applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

2. Accordingly, it must also be presumed that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. The applicant’s contentions have been noted by the Board and are not supported by the evidence of record. Likewise, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses and the evidence of record. Furthermore, a request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned. Had there been mitigating circumstances that led to his misconduct, he could have submitted a statement in his own behalf at the time he submitted his request or he could have stood trial by court-martial whereas he could have asserted his innocence based on mitigating circumstances. Accordingly, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.

4. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the seriousness of the charges against him.

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 the aforementioned 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

__rgh ___ ___ja ___ __cb____ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AR1999022464
SUFFIX
RECON
DATE BOARDED	1999/07/21
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1970/07/07
DISCHARGE AUTHORITY	AR635-200, ch10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00/good of svc
2.
3.
4.
5.
6.