MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 June 2002
         DOCKET NUMBER: AR2002070651

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Allen L. Raub		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 be upgraded to honorable.

APPLICANT STATES: That he was stationed in Germany when he was sent home on leave and then to Vietnam. After extending in Vietnam, he was sent home on leave and it was at this time he was given a profile for permanent and traumatic arthritis. He goes on to state that his condition caused him to be assigned to limited duty and because of the pain, he refused to return to Vietnam again. He also states that his health is bad and he is unable to be gainfully employed or to receive Veterans Administration (VA) benefits. He further states that serving a tour in Vietnam should have some bearing on his discharge.

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

He enlisted in Nashville, Tennessee on 30 April 1968, for a period of 3 years. He was transferred to Fort Campbell, Kentucky, where he underwent his basic training and was enrolled in a basic reading program. He completed his basic training and was transferred to Fort Polk, Louisiana, for advanced individual training (AIT). In October 1968, while attending his AIT, he underwent a medical examination and indicated that he had bad teeth and feet (bad arches). He received orthodontic treatment, was evaluated by orthopedic doctors and was issued arch supports. It was also determined that he needed glasses and they were issued to him as well. He completed his AIT as an infantryman and was transferred to Germany on 5 December 1968. He was advanced to the pay grade of E-4 on 7 February 1969 and reenlisted on 12 February 1969 for a period of 4 years.

He remained in Germany until 9 July 1969, when he was transferred to Vietnam. He arrived in Vietnam on 10 July 1969 and was assigned duties as a truck driver, radio operator and then as a team chief in a signal company. On 25 July 1969, a permanent physical profile was issued to the applicant for traumatic arthritis, subtalar joint, left ankle. His profile indicated that he was medically qualified for limited duty.

On 8 January 1970, he was promoted to the pay grade of E-5. He extended his tour in Vietnam for a period of 6 months and was granted a 30-day special leave with a return date of 10 June 1970. He failed to return as ordered and was reported as absent without leave (AWOL). He remained absent until he was returned to military control at Fort Campbell on 22 June 1970. He again went AWOL on 23 June and remained absent until 15 December 1970, when charges were preferred against him.

He again went AWOL on 29 March 1971 to 2 August 1971 and from 1 September to 15 September 1971, when he was returned to military control and charges were again preferred against him. He also underwent a medical and physical examination and was cleared for separation.

On 30 September 1971, 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. In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. He further elected to submit a statement in his own behalf whereas he contended that if he was not discharged, he would go AWOL again.

The appropriate authority approved his request on 28 October 1971 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 27 October 1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 2 years, 7 months and 19 days of total active service and had 312 days of lost time due to AWOL.

On 26 April 1982, he applied to the Army Discharge Review Board (ADRB) requesting that his discharge be upgraded. He contended at that time that his discharge was too harsh under the circumstances. After reviewing the available evidence, the ADRB voted unanimously to deny his application on 18 February 1983.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions 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. 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.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. In doing so he admitted guilt to the charges against him. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the number and length of his absences as well as his otherwise undistinguished record of service during such a short period of time.

4. 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.

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

___kak__ __mm___ __alr ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070651
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/06/18
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1971/10/27
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00
2.
3.
4.
5.
6.