| Mr. Carl W. S. Chun | Director | |
| Mr. Edmund P. Mercanti | Analyst |
| Mr. Arthur A. Omartian | Chairperson | |
| Mr. Hubert O. Fry | Member | |
| Mr. Thomas E. O'Shaughnessy | Member |
APPLICANT REQUESTS: In effect, that the undesirable discharge (UD) given to her late husband, the former service member (FSM), be upgraded to an honorable discharge for medical reasons.
APPLICANT STATES: Her husband served in Vietnam for 13 months, and was given all the awards that were presented to soldiers who served in Vietnam.
COUNSEL CONTENDS: That after the FSM returned from Vietnam, he had emotional problems and was separated from his wife. He was extremely disillusioned and embittered against the military at that time. Counsel contends that the FSM’s Vietnam service should warrant upgrading his discharge.
EVIDENCE OF RECORD: The FSM’s military records show:
He entered active duty on 19 May 1966, was awarded the military occupational specialty of heavy vehicle driver, and was promoted to pay grade E-4. He served in Vietnam from 2 March 1967 to 1 March 1968.
On 4 November 1966, the FSM was convicted by a special court-martial of being absent without leave (AWOL) from 6 September to 14 October 1966.
On 2 February 1967, he accepted nonjudicial punishment (NJP) for sleeping on duty for the purpose of avoiding work.
On 1 June 1968, he accepted NJP for failing to go at the time prescribed to his appointed place of duty, and for being drunk on duty.
On 29 July 1968, he was convicted by a special court-martial of being AWOL from 1 to 19 July 1968.
On 12 February 1969, he accepted NJP for being AWOL from 5 to 8 January 1969.
He departed AWOL on 4 July 1969, was dropped from the rolls of the Army as a deserter, and was returned to military control on 7 February 1971.
On 16 April 1971, he was issued an Undesirable Discharge Certificate for the good of the service, in lieu of trial by court-martial. He had 2 years, 10 months and 8 days of creditable service, and 751 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 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 (UOTHC) is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
Army Regulation 635-40 (Physical Evaluation for Retention or Separation) paragraph 4-3, provides that an enlisted soldier who is the subject of elimination action that might result in a discharge under other than honorable conditions may not be processed for medical retirement or discharge.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:
1. While the FSM’s discharge proceedings are not contained in his records, it must be presumed that he requested discharge in lieu of trial by court-martial for his two plus years absence. Without documentation to show otherwise, the Board will presume administrative regularity in the discharge process.
2. The Board has carefully considered the FSM’s creditable service and the fact that he served in Vietnam. However, these factors do not overcome the seriousness of an unauthorized absence of over two years, and does not offset a record of two courts-martial convictions and three NJP’s.
3. As for the applicant’s counsel’s contention that the FSM had emotional problems, the FSM’s health records were not contained in his military personnel records jacket. However, even if the FSM was suffering from a condition which would have been medically disqualifying, it would not have resulted in his receiving a medical discharge since he was being considered for an UOTHC discharge at that time.
4. 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
| CASE ID | AR2001063085 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20020430 |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 108.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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