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ARMY | BCMR | CY1990-1993 | 9306689
Original file (9306689.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge.

APPLICANT STATES : No contentions submitted.

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

He was born on 2 February 1949. On 23 December 1968, the applicant enlisted in the Regular Army for 2 years. His Armed Forces Qualification Test score was 85 (Category II). He completed the required training and was awarded military occupational specialty 11B10 (Infantryman). The highest grade he achieved was pay grade E-2.

On 20 July 1969, while assigned to a unit in Vietnam, the applicant was wounded in the mouth by hostile fire. The applicant was returned to duty after in-country hospitalization. However, when the applicant was ordered to proceed on a combat operation he willfully disobeyed the lawful order by his superior officer.

On 25 October 1969, the applicant was convicted by a special court-martial for willfully disobeying a lawful order. He was sentenced to confinement at hard labor for 4 months (suspended), a forfeiture of $55 pay per month for 2 months and a reduction to pay grade E-1.

In November 1969, the applicant was again ordered to proceed on a combat operation and again he disobeyed a lawful order by his superior officer.

On 2 November 1969, court-martial charges were again preferred against the applicant for disobeying a lawful order.

On 22 November 1969, a medical examination found the applicant medically fit for retention.

On 24 November 1969, after consulting with legal counsel the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.
The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He was afforded the opportunity to submit statements in his behalf, but declined to do so.

On 3 December 1969, the appropriate authority approved his request and directed the issuance of a discharge UOTHC.
On 14 December 1969, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of service with a discharge UOTHC. He had completed 11 months and 22 days of creditable active service. He was awarded the Purple Heart, the National Defense Service Medal and the Vietnam Service Medal.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that 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 the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge UOTHC is normally considered appropriate.

On 29 November 1978, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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

1. 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.

2. 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. There is no indication that the request was made under coercion or duress.

3. The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

4. 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

DENY APPLICATION




                  Karl F. Schneider
                  Acting Director

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