MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 August 2002
         DOCKET NUMBER: AR2002068589

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Lester Echols		Member
Ms. Margaret V. Thompson		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)

---

APPLICANT REQUESTS: That his undesirable discharge (UD) be upgraded to a general discharge under honorable conditions.

APPLICANT STATES: That after he returned from Vietnam, he was assigned to Fort Sill, Oklahoma. Although he was a Vietnam veteran, a lieutenant who had recently graduated from Officer Candidate School (OCS) treated him like a new recruit. He states that he served in Vietnam for 1 year, 3 months and 29 days, and he was awarded the Combat Infantryman Badge (CIB). He is making this request because he is seeking medical benefits from the Department of Veterans Affairs (DVA). He submits in support of his request a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 10 March-19 October 1970.

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

He was inducted into the Army of the United States for 2 years on 15 November 1967. Following completion of all required military training, he was awarded MOS (military occupational specialty) 11B (light weapons infantryman) and assigned to Vietnam. He arrived in Vietnam on/about 1 July 1968 and was assigned to Company C, 1st Battalion, 18th Infantry, 1st Infantry Division, on 10 July 1968.

The applicant was honorably separated on 5 September 1968 for the purpose of immediate enlistment in the Regular Army (RA). On 6 September 1968, he enlisted in the RA for 3 years [although a DD Form 214 was issued for the period of service from 15 November 1967 - 5 September 1968, it is not available in the applicant's records].

On 30 September 1968, the applicant was reassigned to the 444th Transportation Company for training in MOS 63A (Wheel Vehicle Mechanic). The applicant served in the 444th Transportation Company in a variety of duty MOS's until he was hospitalized on 19 October 1969 with a skin condition on his hands. He never returned to his unit and eventually was medically evacuated to the United States and admitted as a patient to Walter Reed Army Medical Center (WRAMC), Washington, DC. During his service in Vietnam, he was awarded the Vietnam Service Medal with 3 Bronze Service Stars, the Vietnam Campaign Medal, the Combat Infantryman Badge, and 2 Overseas Service Bars.

On 17 December 1969, the applicant was released from WRAMC, and after a period of leave, he reported for duty with the 226th Maintenance Company, Fort Sill, Oklahoma, in MOS 63B (Light Wheel Vehicle Mechanic). On 9 March 1970, he was honorably separated for the purpose of immediate reenlistment in the RA for 6 years. He reenlisted on 10 March 1970.

On 17 March 1970, the applicant departed his unit in an absent without leave (AWOL) status and remained absent until on/about 29 April 1970. On 12 May 1970, he was convicted by a special court-martial and sentenced to reduction from pay grade E-4 to pay grade E-3 and forfeiture of $50.00 pay per month for 4 months.

The applicant was AWOL again from 31 May-29 July 1970. On 1 August 1970, court-martial charges were preferred against him for this period of AWOL. On 19 August 1970, the applicant consulted with legal counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. He acknowledged that he understood that he could receive a UD. He also acknowledged that he understood the ramifications of receiving a UD and he submitted a statement in his own behalf in which he cited his military service/history, but made no contentions.

On 9 September 1970, the applicant was psychiatrically cleared for administrative separation or disciplinary action. On 18 September 1970, a medical examination determined that he was qualified for separation.

On 21 September 1970 at the Dermatology Clinic, Reynolds Army Hospital, Fort Sill, Oklahoma, the applicant was specifically reevaluated for Reiter's Syndrome (skin condition) and he was determined to be disease-free. Although he was found to have eczema, he was declared "fit for REFRAD" or "release from active duty."

On 28 September 1970, the applicant’s unit commander recommended that his request for discharge be disapproved, because he only had one prior court-martial and his record was basically good.

On 30 September 1970, the applicant’s intermediate commander recommended that his request for discharge be disapproved, because he only had one prior court-martial, and one reduction. He also recommended that the applicant be transferred for rehabilitative purposes to another unit upon completion of the pending court-martial action. On 12 October 1970, the separation authority approved separation with a UD and directed that the applicant be reduced to pay grade E-1.

On 19 October 1970, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200 with a UD. His DD Form 214 showed that he had completed 3 months and 26 days of creditable active military service on the enlistment under review and he had 104 days of lost time. He had also completed 2 years, 3 months and 25 days of prior active military service.
There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge under that board's 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. However, at the time of the applicant's separation, the regulation provided for the issuance of a UD.

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's Vietnam service did not exempt him from having to obey the orders of a newly commissioned OCS second lieutenant. As a veteran soldier, the applicant had many legitimate avenues through which to obtain assistance in dealing with this issue without committing the misconduct offenses that led to the separation action under review.

3. 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. There is no indication that the request was made under coercion or duress. The type of discharge directed and the reasons for discharge were appropriate considering the facts of the case.

4. The applicant underwent both a medical examination and a psychological evaluation and he was determined to be qualified for separation.

5. Entitlement to veteran’s benefits is not a matter under the purview of this Board, but rests with the Department of Veteran Affairs. However, the lack of entitlements does not provide a basis upon which to grant an upgrade of a discharge.

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

__rjw___ __le____ __mvt___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002068589
SUFFIX
RECON
DATE BOARDED	20020808
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19701019
DISCHARGE AUTHORITY	AR635-200, Ch 10
DISCHARGE REASON	A60.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.6000
2.
3.
4.
5.
6.