MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 February 2001
         DOCKET NUMBER: AR2001051241

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Roger W. Able		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.

APPLICANT STATES: That he was only 16 when his mother approved his entering the Army. He was told that he would be allowed to take training that upon his release would qualify him to become a commercial pilot. However, after his training he was sent to Vietnam, where his troubles began. He served in Vietnam the best he could but he experienced many emotional problems while there. Upon his return, his only desire was to get out of the service because he felt as though he had been betrayed. He constantly sought permission to be released. No one would listen to him until one time he informed his commander that he wanted to be released at any cost and he was informed that he could be released if he took an undesirable discharge, which he agreed to do. He was later informed that he should not have been allowed to take such drastic measures without first being examined by a medical person.

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

He was born on 18 October 1948. On 27 June 1966, his mother gave her consent to his enlistment in the Army. He enlisted in the Regular Army on 30 June 1966. The applicant signed part I, 4^th Recruiting District Form 23 acknowledging that all promises made to him were contained in items 11, 13, or 37 of his Enlistment Record – Armed Forces of the United States, DD Form 4. Item 11 of his DD Form 4 states he enlisted in the rank and grade of Private, E-1; item 13 states he enlisted for no specific initial assignment; and item 37, Remarks, contains the entry “None.” He signed part II, 4^th Recruiting District Form 23 certifying that no oral or written promises were made to him in connection with his enlistment.

The applicant completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

On 24 December 1966, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from the Overseas Replacement Station, Oakland, CA from 11 – 23 December 1966.

On or about 2 January 1967, the applicant arrived in Vietnam. He performed duties as a light weapons infantryman and as a security guard. He was awarded the Combat Infantryman Badge. On 9 July 1967, he accepted NJP under Article 15, UCMJ for leaving his appointed place of duty, to wit: a company detail. He departed Vietnam on 10 January 1968.

On 14 March 1968, the applicant accepted NJP under Article 15, UCMJ for absenting himself from his unit.
On 15 May 1968, the applicant was convicted by a special court-martial of being AWOL from 18 March – 18 April 1968. He was sentenced to confinement at hard labor for 3 months, suspended, and to forfeit $58.00 pay for 4 months.

On 8 October 1968, while AWOL, the applicant was arrested by civil authorities while in possession of a stolen vehicle. Charges of interstate transportation of a stolen motor vehicle were filed against him. On 7 November 1968, he entered a plea of guilty to this charge in the U. S. District Court, Lubbock, TX. He was sentenced to 2 years probation and released to military authorities.

On 16 December 1968, the applicant was convicted by a special court-martial of being AWOL from 8 October – 7 November 1968. He was sentenced to confinement at hard labor for 4 months and to forfeit $70.00 pay for 4 months.

On 5 May 1969, the applicant was convicted by a special court-martial of being AWOL from 14 – 19 February 1969 and from 24 February – 25 March 1969 and of breaking restriction. He was sentenced to confinement at hard labor for 6 months and to forfeit $70.00 pay for 6 months.

On 16 June 1969, the applicant accepted NJP under Article 15, UCMJ for absenting himself from his organization.

On 3 October 1969, the applicant accepted NJP under Article 15, UCMJ for absenting himself from his place of duty.

On 1 December 1969, the applicant completed a separation physical examination. No psychiatric problems or any other physical problems were indicated and he was found qualified for separation.

On 2 December 1969, court-martial charges were preferred against the applicant charging him with AWOL for the periods 1 – 22 November 1969 and 18 – 29 October 1969.

On 12 December 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 elected not to submit a statement in his own behalf.

On 13 February 1970, the appropriate authority approved the request and directed the applicant receive an Undesirable Discharge Certificate.

On 24 February 1970, the applicant was discharged, with an undesirable, discharge under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial. He had completed 2 years, 8 months and 14 days of creditable active service and had 348 days of lost time.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 40-501 governs medical fitness standards, physical profiles and medical examinations. The regulation at the time did not require soldiers undergoing chapter 10 separations to undergo a mental status evaluation. Under the current regulation, a mental status evaluation is required only if the soldier specifically requests a medical examination.

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 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.

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 Board notes that there was nothing in the applicant’s enlistment contract that “promised” him anything and he signed in two places certifying that he had been made no promises. The Board notes that his misconduct started before he arrived in Vietnam and, while the majority of his service in Vietnam was satisfactory, he did receive one Article 15 while there. The Board notes that he was examined by a medical person prior to his separation. No psychiatric problems were indicated and he was found qualified for separation. A separate mental status evaluation was neither required nor indicated.

4. When the applicant requested discharge under chapter 10, he acknowledged that he 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.

5. The Board notes the applicant’s young age at the time he enlisted; however, many soldiers just as young served in the Army and in Vietnam and completed their service honorably. It would not be a matter of equity to grant him relief when other soldiers in similar circumstances were able to successfully complete their service.

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

__jns___ __mhm___ __rwa___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001051241
SUFFIX
RECON
DATE BOARDED	20010227
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19700224
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.