MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
                                   

         BOARD DATE: 9 September 1998
         DOCKET NUMBER: AC97-08894

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Thomas N.Kuhn		Member
Ms. Karen L. Wolff		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 (UD) be upgraded to an honorable discharge (HD) and that his veterans benefits be restored.

APPLICANT STATES: In effect, that he has not been the same since his service in Vietnam; that he is now ill with cancer and his treatment is very expensive; that he does not have any income; that his service in Vietnam should entitle him to benefits; and that he tried to apply for clemency but did the wrong paperwork.

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

The applicant entered the Regular Army for 3 years on 20 September 1968 at the age of 18. He successfully completed basic training, advanced individual training, and the basic airborne course. Upon completion of training he was awarded military occupational specialty (MOS) 91B (Medical Assistant).

The record shows the applicant attained the rank of specialist/E-4, completed a tour in Vietnam, and earned the National Defense Service Medal; the Vietnam Service Medal; and the Vietnam Campaign Medal. However, there are no specific documented acts of valor, achievement, or service warranting special recognition. The record does contain an extensive history of disciplinary problems which include the applicant’s acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on three separate occasions, and a conviction by summary court-martial.

On 16 June 1969 the applicant accepted a NJP, while assigned to the Seneca Army Depot in Romulus, New York, for misappropriation of a government vehicle; driving without a license; and reckless driving. His punishment for these offenses was a forfeiture of $40.00.

On 30 March 1970 while in Vietnam the applicant accepted a second NJP for sleeping in his bed while being absent from his guard post. His punishment included a suspended reduction in rank to private first class/E-3; forfeiture of $20.00; and 6 days of extra duty.

On 21 October 1970 the applicant, while assigned to Fort Jackson, South Carolina, accepted another NJP for failing to go to his prescribed place of duty. He was punished with a forfeiture of $50.00.

On 26 February 1971 the applicant was tried by summary court-martial for two specifications of violation of Article 86 of the UCMJ. The first specification was for a period of AWOL from 2 to 9 December 1970; and the second specification was for an AWOL period from 21 December 1970 to 19 January 1971.
The applicant plead and was found guilty of both specifications and sentenced to be reduced to the lowest pay grade; to forfeit $40.00; and to be restricted to the Fort Jackson reservation for 60 days.

In addition to the periods of AWOL for which he was convicted by summary court-martial as outlined above, the record also shows a repeated pattern of AWOL related incidents on the part of the applicant. He was AWOL form 1 April to 14 June 1971; and from 6 July 1971 until 7 August 1975.

On 25 November 1974 a letter was sent, addressed to the applicant’s mother, advising the applicant of his eligibility under the terms of Presidential Proclamation Number 4313 (PP 4313). PP 4313 issued by President Ford established a program of clemency for individuals who absented themselves without leave, were dropped from the rolls, or who missed movement during the time frame 4 August 1964 through 28 March 1973. The letter provided the terms the applicant would have to meet in order to take advantage of the program and advised the applicant of the requirement that he would have to physically present himself at Fort Benjamin Harrison, Indiana. The applicant was informed that provisions had been made for those individuals who lacked sufficient funds to for transportation to Fort Benjamin Harrison, and he was provided points of contact and telephone numbers for the Army clemency information point to obtain information on participation in the program. The applicant failed to respond to this clemency program and remained in an AWOL status until he was apprehended on 7 August 1975.

While the record is void of the specific facts and circumstances concerning the events that led to a discharge from the Army, the record is clear that the applicant after being returned to military control and being advised that court-martial charges were being preferred expressed his desire to leave military service, via a Chapter 10 discharge.

The applicant’s record does contain a properly constituted DD Form 214
(Report of Separation from Active Duty). This document identifies the reason and characterization of the discharge. The DD Form 214 documents that the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial. In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.

Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ. Additionally, separation counseling would have been required in connection with the applicant’s discharge. This counseling would have included an explanation of his loss of benefits administered by the Department of Veterans Affairs (VA), the loss of veterans benefits provided under federal and state law; and the loss of Army benefits. Additionally, the applicant, prior to his requesting discharge, would have been made aware that the characterization of service for this type of discharge is normally under other than honorable conditions.

On 13 August 1975 the applicant underwent a complete medical examination and was cleared for separation by competent medical authorities. The clinical evaluation portion of the examination found that the applicant’s psychiatric profile and condition were normal; in addition, to granting a physical profile attesting to the applicant’s good health.

The DD Form 214 indicates the applicant was discharged on 8 October 1975 with a UD, after completing 2 years, 8 months and 12 days of active military service, and accruing 110 days of time lost due to AWOL prior to his normal expiration of term of service (ETS), and 1479 days of time lost subsequent to his normal ETS.

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 are preferred, submit a request for discharge for the good of the service in lieu of trial by court martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant’s discharge the regulation provided for the issuance of a UD.

On 28 March 1977 President Carter approved a special review program for those veterans who were discharged during the period established in PP 4313
(4 August 1964 through 28 March 1973). The Special Discharge Review Program (SDRP) was implemented on 4 April 1977 and the last date that individuals could apply was 3 October 1977. The SDRP reviewed any UD or GD issued during the dates outlined above and mandated an upgrade of UD’s if the individual was wounded in Vietnam, received a personal medal in Vietnam, completed a tour in Vietnam, completed alternate service under PP 4313, or had an HD from previous service. On 8 October 1977 President Carter singed into law Public Law 95-126 which statutorily barred benefits administered by the VA for individuals who were AWOL for a period greater than 180 days, and directed the Discharge Review Boards to establish uniform standards accordingly.

The applicant failed to respond to the clemency program announced in PP 4313 and was not eligible for a review by the SDRP. Additionally, there is no evidence that the applicant ever applied to the Army Discharge Review Board (ADRB) 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, it is concluded:

1. The Board concludes that the applicant is not eligible for upgrade under the provisions of PP 4313 because he failed to comply with the requirements of the program. The Board further found that the applicant was not eligible to apply to the SDRP because his discharge date was not within the parameters established for the program. Additionally, he does not qualify for an upgrade of his discharge based on the uniform standards established in accordance with Public Law
95-126. The evidence of record shows that the applicant chose to request an administrative discharge rather than risk the consequences of a court-martial. Although he may now feel that he made the wrong choice, this does not provide a basis to upgrade his discharge.

2. While the Board is empathetic with the applicant’s medical problems, the evidence of record shows the applicant was in good health at the time of his discharge, and he was aware of the effects of a discharge under other than honorable conditions. The applicant knew he might be deprived of many or all Army and VA benefits and still choose to request an administrative discharge rather than risk the consequences of a court-martial.

3. In the absence of evidence to the contrary, the Board presumes 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.

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 the aforementioned requirement.

5. 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




                                                      Loren G. Harrell
                                                      Director