MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 January 2002
         DOCKET NUMBER: AR2001062574

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Roger W. Able		Member
Mr. Terry L. Placek		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 discharge under other than honorable conditions be upgraded.

APPLICANT STATES: That he had already been to Vietnam and was disorderly. In support of his application, he submits a character reference letter from his minister.

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

The applicant enlisted on 19 February 1968 for a period of 3 years. He successfully completed basic and advanced individual training and was transferred to Vietnam for duty as an infantryman on 10 August 1968.

On 14 December 1968, while in Vietnam, nonjudicial punishment was imposed against the applicant for leaving his guard post with intent to abandon. His punishment consisted of a forfeiture of pay.

On 12 June 1969, while in Vietnam, the applicant was convicted by a special court-martial of violating three lawful general regulations. He was sentenced to be reduced to the grade of E-1, to be confined at hard labor for 6 months and to forfeit $73 per month for 6 months. On 17 June 1969, the convening authority approved the sentence.

The applicant was transferred back to the United States on 3 September 1969.

On 12 December 1969, nonjudicial punishment was imposed against the applicant for disobeying a lawful order and failing to go to his appointed place of duty. His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 23 April 1970, nonjudicial punishment was imposed against the applicant for breaking restriction. His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 1 May 1970, charges were preferred against the applicant for disrespectful behavior toward a superior commissioned officer (two specifications), disobeying a lawful command from a superior commissioned officer, disrespectful language toward a superior noncommissioned officer and assaulting a superior commissioned officer. Trial by special court-martial was recommended.

On 23 June 1970, 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. He indicated in his request that he understood that he could receive an under other than


honorable conditions discharge; that he shall be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both State and Federal Law. He also acknowledged that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. Additionally, he elected not to submit a statement on his own behalf.

On 30 June 1970, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged under other than honorable conditions on 16 July 1970 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served 2 years, 1 month and 17 days of total active service with 39 days lost due to being absent without leave and confinement.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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 under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

2. The Board considered the character reference letter provided in support of the applicant’s claim. However, good post service conduct alone is not a basis for upgrading a discharge.

3. The Board reviewed the applicant’s record of service and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

4. The Board also determined that the applicant’s military record which included one special court-martial conviction, three nonjudicial punishments and 39 days of lost time was not satisfactory. Therefore, the applicant is not entitled to a general discharge.

5. 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.

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.

NOTE: Request that the Army Review Boards Agency (ARBA), Support Division, St. Louis, Missouri, furnish the individual concerned a DD Form 215 (Correction to DD Form 214) to show in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) that he is entitled to award of the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, the Vietnam Campaign Medal,
two Overseas Service Bars, the Valorous Unit Award, the Republic of Vietnam




Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

LLS_____ RWA___ TLP______ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062574
SUFFIX
RECON
DATE BOARDED	20020108
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19700716
DISCHARGE AUTHORITY	AR 635-200 Chapter 10
DISCHARGE REASON	For the good of the service
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.