MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 31 July 2001
         DOCKET NUMBER: AR2001056121

         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. Walter T. Morrison		Chairperson
Mr. John T. Meixell		Member
Mr. Arthur A. Omartian		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 a more favorable discharge.

APPLICANT STATES: In effect, that he was unaware of the effect an undesirable discharge would have on him and that he was given an undesirable discharge because of his race.

EVIDENCE OF RECORD: The applicant's military records, though reconstructed, show:

He was inducted in Detroit, Michigan on 10 October 1960 and successfully completed his training at Fort Knox, Kentucky. He was transferred to Germany on 16 March 1961 for duty as an armor intelligence specialist and was promoted to the pay grade of E-3 on 17 June 1961.

He was honorably discharged on 9 October 1962 for the purpose of immediate reenlistment. He reenlisted on 10 October 1962 in the pay grade of E-4. He rotated with his unit to Fort Meade, Maryland on 4 August 1964 and was honorably discharged on 31 December 1964 for the purpose of immediate reenlistment. He reenlisted on 1 January 1965 for a period of 6 years.

On 1 September 1965, nonjudicial punishment was imposed against him for being out of uniform. His punishment consisted of a forfeiture of pay. He was convicted by a special court-martial on 3 September 1965 of selling a battery belonging to the government to another soldier. His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay and restriction. In April 1966 he went absent without leave (AWOL) for 2 days and nonjudicial punishment was again imposed against him, which resulted in his being reduced to the pay grade of E-2.

He was transferred to Vietnam with his unit on 23 August 1966 and was promoted to the pay grade of E-3 on 24 October 1966. However, nonjudicial punishment was again imposed against him on 2 November 1966 for failure to go to his place of duty. His punishment consisted of a reduction to the pay grade of E-2.

He was again promoted to the pay grade of E-3 in January 1967; however, he was convicted by a special court-martial on 30 July 1967 of taking a .45 caliber pistol into a Vietnamese meeting place and being in the place after curfew. His sentence consisted of a reduction to the pay grade of E-2 and a forfeiture of pay.

He departed Vietnam on 23 August 1967 and was transferred to Fort Knox. He arrived there on 15 October 1967 and served for 3 months without difficulty. He went AWOL on 15 January 1968 for a period of 15 days and the record is silent as to any punishment imposed. He again went AWOL on 13 March 1968 and remained absent until he was returned to military control at Fort Sheridan, Illinois on 6 March 1969. He was transferred to Fort Riley, Kansas and was convicted by a special court-martial on 25 March 1969 of the AWOL offense. He was sentenced to confinement at hard labor for 6 months (suspended for 6 months), a reduction to the pay grade of E-1 and a forfeiture of pay.

Although not fully explained in the available records, the applicant was on leave at Fort Meade on 8 April 1969 and attempted to get unauthorized partial pay by forging a finance officer’s signature. When an attempt to verify the signature was being made, the applicant fled the scene, leaving his identification card behind. A Criminal Investigation Division (CID) investigation was conducted and completed in September 1969. Meanwhile, the applicant had gone AWOL from 14 to 17 April 1969 and 14 to 17 September 1969, for which nonjudicial punishment was imposed. An investigation under Article 32, Uniformed Code of Military Justice (UCMJ) was completed on 7 November 1969 and charges were preferred against the applicant for forgery, presenting a false claim and attempted larceny.

On 1 December 1969, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. The appropriate authority approved his request and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 25 February 1970 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 7 years, 3 months and 29 days of total active service and had 433 days of lost time due to AWOL and confinement. His awards include the Good Conduct Medal, the National Defense Service Medal, the Vietnam Service Medal and the Republic of Vietnam Campaign Medal.

He applied to the Army Discharge Review Board (ADRB) on 5 February 1979 for an upgrade of his discharge and was granted a personal appearance before that board in New Orleans, Louisiana on 17 November 1980. He contended at that time that his indisciplines were caused by his personal problems and that he could not receive assistance in those matters from his chain of command. He also recounted the circumstances of an indiscipline where he was confined by civil authorities while on active duty for purchasing stolen good (tires). He contended that his service in Vietnam, where he was awarded the Combat Infantryman Badge (CIB), the Bronze Star Medal (BSM) and the Purple Heart (PH), coupled with his 7 years of honorable service should be sufficient to warrant an upgrade of his discharge. In cross-examination by board members regarding the absence of evidence in his records showing awards of the CIB, BSM and PH, the applicant contended that he had them and could produce them if necessary. The Board granted the applicant a continuance of his case in order to allow him sufficient time to secure the necessary documents. However, when the board reconvened on 7 January 1981, the applicant had failed to produce the documents in question. The board concluded that he had never been awarded those awards, that his disciplinary record, lost time and overall record of service were not sufficiently mitigating to warrant an upgrade of his discharge. The board determined that he had been properly discharged and voted unanimously to deny his appeal.

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 discharge under other than honorable conditions was then and currently 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, it is concluded:

1. 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, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. It appears that the applicant 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. 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 and his otherwise undistinguished record of service.

4. The applicant’s contentions have been noted by the Board; however, they are not sufficiently mitigating to warrant relief when compared to his otherwise undistinguished record of service and the available facts of his case.

5. The Board has also noted the applicant’s contention that his discharge was the result of racial discrimination. However, the applicant has submitted no evidence to support his contention and his records do not contain any evidence to show that the punishments he received for his numerous indisciplines was in any way racially directed or that they were unduly harsh.
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

__wtm___ __jm ____ ___ao___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001056121
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/07/31
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1970/02/25
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	A70.00/GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00/GD OF SVC
2.
3.
4.
5.
6.