MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 October 2001
         DOCKET NUMBER: AR2001059206

         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. Robert J. McGowan		Analyst

The following members, a quorum, were present:

Ms. Shirley L. Powell		Chairperson
Mr. Allen L. Raub		Member
Mr. Thomas E. O'Shaughnessy, Jr.		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 (UD) be upgraded to a general discharge (GD).

APPLICANT STATES: That he would like to receive amnesty; that he was promised an upgrade after 10 years.

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

As a 17 year old with parental consent, he enlisted in the Regular Army for a period of 3 years on 28 January 1969. Following the completion of all required military training at Fort Leonard Wood, Missouri, he was awarded military occupational specialty (MOS) 70A, General Clerk, and transferred to Fitzsimons General Hospital, Denver, Colorado, for duty.

In early 1970, the applicant was ordered to the Overseas Replacement Station, Fort Lewis, Washington, for reassignment to the Republic of Vietnam (RVN). On 3 March 1970, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being AWOL (absent without leave) from 27 February 1970 to 3 March 1970. As punishment, he forfeited $50 pay per month for 2 months.

The applicant was transferred to the RVN on 4 March 1970 and assigned to the 116^th Aviation Company. On 5 April 1970, he accepted NJP for being AWOL from his place of duty on 3 April 1970 and failing to go to company formation on 31 March, 1 April, and 4 April 1970. As punishment, he was reduced to private (E-2), forfeited $67 pay for 1 month, and given 14 days' extra duty.

On 12 May 1970, the applicant again accepted NJP for failing to go to his duty station on 4 May 1970, for failing to go to unit formation on 11-12 May 1970, and for failing to go to extra training on 10-11 May 1970. As punishment, he forfeited $69 pay per month for 2 months and was given 14 days of extra duty and restriction. He was given a rehabilitative transfer to the 242^nd Aviation Company.

On 29 July 1970, the applicant accepted NJP at his new unit for being disrespectful to a noncommissioned officer (NCO). As punishment, he forfeited $69 pay per month for 2 months and was given 30 days of extra duty and restriction.

On 29 August 1970, the applicant accepted NJP for being AWOL from his unit on 27 August 1970. As punishment, he forfeited $69.15 pay per month for 2 months (suspended for 1 month).

On 3 February 1971, the applicant was reassigned from the RVN to the United States and Fort Rucker, Alabama. On 3 May 1971, he went AWOL and remained absent through 8 January 1972. He was returned to military control at Fort Riley, Kansas and assigned to the Personnel Control Facility. Although not in the record, court-martial charges were apparently preferred against him and he requested separation for the good of the service, in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200. He went AWOL again on 21 February 1972 and was discharged in absentia on 25 February 1972.

The applicant received a UD on 25 February 1972. He had 2 years, 4 months, and 7 days of creditable service and 260 days of lost time due to AWOL. He served 11 months in the RVN as a clerk in two different aviation companies.

The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade. The ADRB, after considering his case on/about 26 April 1974, denied his request.

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. Army policy states that although an honorable or general discharge is authorized, a UD 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. 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 was an habitual disciplinary problem before, during, and after his assignment to the RVN. The Board noted that the applicant received numerous NJPs and a rehabilitative transfer in an attempt to make him a good soldier.

3. The applicant’s record is void of facts and circumstances concerning the events that led to a discharge from the Army. The Board noted that the applicant’s record contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which identifies the reason and characterization of the discharge. The Board presumes Government regularity in the discharge process. The evidence of record shows 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 would have admitted guilt to the stipulated offenses under the UCMJ. In the absence of information to the contrary, the Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.

4. The US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits a request for a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge, or both, were improper or inequitable.

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

_slp_____ ___a;r___ __teo___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059206
SUFFIX
RECON
DATE BOARDED	20011023
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19720225
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	A71.00
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	110.0000
2.
3.
4.
5.
6.