MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 February 2002
         DOCKET NUMBER: AR2001063773

         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. Raymond V. O’Connor		Chairperson
Ms. Celia L. Adolphi		Member
Mr. John T. Meixell		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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES: That he should have received an honorable discharge because of the time he served in Vietnam fighting for his country. He also contends that in accordance with the United States District Court for the District of Columbia in Giles v. Secretary of the Army (Civil Action No. 77-0904), a former Army soldier is entitled to an honorable discharge if a less than honorable discharge was issued to a soldier on or before 27 November 1979.

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

The applicant enlisted on 30 March 1970 for a period of 3 years. He successfully completed basic combat training, advanced individual training and airborne training and was transferred to Vietnam for duty as a light weapons infantryman. He served as a rifleman in Vietnam from 23 October 1970 through 23 October 1971.

On 14 March 1972, nonjudicial punishment was imposed against the applicant for failing to obey a lawful general order. His punishment consisted of a forfeiture of pay and a verbal reprimand.

The applicant went absent without leave (AWOL) on 2 May 1972, was apprehended by civil authorities on 15 January 1973 and returned to military control on 16 January 1973. Charges were preferred against the applicant for being AWOL and trial by special court-martial was recommended.

On 26 January 1973, 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. He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that he shall be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the VA; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. Additionally, he elected not to submit a statement in his own behalf.
However, the applicant provided a supplemental information sheet wherein he stated that he did not make enough money in the Army to support his family, that he could not adjust to military life and that he had no desire to stay in the Army.
The intermediate commanders recommended that the applicant’s request for discharge be disapproved and that he be afforded an opportunity to complete his tour of duty.

On 6 February 1973, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge.

Accordingly, the applicant was discharged under other than honorable conditions on 7 February 1973 under the provisions of Army Regulation 635-200, chapter 10. He had served 2 years, 1 month and 20 days of total active service with
258 days of lost time due to AWOL.

On 23 March 1982, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade.

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.

The rulings by the United States District Court for the District of Columbia in the cases of Giles v. Secretary of the Army, 475 F. Supp. 595 (District Court D.C.
23 August 1979) and Giles v. Secretary of the Army, 84 F.R.D. 374 (District Court D.C. 27 November 1979) invalidated the Army’s practice of focusing on individuals suspected of drug use and compelling those persons to provide urine samples in violation of Article 31, UCMJ, and then administratively separating those persons with adverse discharges.

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 Giles decisions cited by applicant are not relevant to his case. In those cases, the court invalidated the Army’s practice of focusing on individuals suspected of drug use and compelling those persons to provide urine samples in violation of Article 31, UCMJ, and then administratively separating those persons with adverse discharges.

2. The Board reviewed the applicant’s record of service which included
25 months of service with excellent ratings and one year of service in Vietnam as an infantryman. However, his record of service also included one nonjudicial punishment and a 258-day AWOL period terminated by apprehension during a time of war.

3. The Board determined that the applicant’s 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 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.

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

6. 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.

7. 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

RVO____ CLA_____ JTM____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063773
SUFFIX
RECON
DATE BOARDED	20020228
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19730207
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.