MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 June 2002
         DOCKET NUMBER: AR2002070819

         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:

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 discharge under other than honorable conditions be upgraded to general.

APPLICANT STATES: That his services rendered on foreign soil during the Vietnam War should entitle him to an upgrade in his discharge to general. He also contends that he was sent home on emergency leave from Vietnam due to hardship circumstances.

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

The applicant enlisted on 11 March 1970 for a period of 3 years. While in basic combat training, nonjudicial punishment was imposed against the applicant on
6 April 1970 for being absent without leave (3 ½ hours). Upon completion of airborne training, nonjudicial punishment was imposed against the applicant on 28 October 1970 for being AWOL from 20 October 1970 to 27 October 1970. His punishment consisted of a forfeiture of pay.

The applicant was transferred to Vietnam on 8 November 1970 for duty as an infantryman. While in Vietnam, the applicant was granted 30 days of emergency leave on 21 December 1970 to return to the United States because his mother was ill. He was granted an additional 10 days of leave and instructed to report to Fort Lewis on 31 January 1971.

The applicant went AWOL on 15 February 1971.

Records indicate that the applicant returned to military control on 15 March 1971 and was attached to Fort Wadsworth at Staten Island, New York.

On 24 March 1971, nonjudicial punishment was imposed against the applicant for failing to go to his appointed place of duty (three specifications) and failing to obey three lawful orders. His punishment consisted of a forfeiture of pay and reduction to private E-2 (suspended for 30 days). On 2 April 1971, the suspended portion of the sentence (reduction to E-1) was vacated.

Records indicate that the applicant was further attached to Fort Hamilton at Brooklyn, New York, effective 11 May 1971, pending a hardship discharge. The applicant’s request for a hardship discharge was disapproved. Ultimately, the applicant was released from attachment and reassigned to his unit in Vietnam. The applicant did not report back to his unit of assignment; instead, he went AWOL.

Records also indicate that the applicant’s unit of assignment was unaware that the applicant had returned to military control on 15 March 1971 and that he had been transferred back to them. Meanwhile, his unit of assignment dropped him from the rolls effective 25 March 1971.
The applicant was apprehended by military authorities on 31 August 1972.

Charges were preferred against the applicant for being AWOL from 15 February 1971 to 31 August 1972.

On 12 September 1972, 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 elected not to submit a statement on his own behalf.

The intermediate commanders concurred with the applicant’s request for discharge and recommended that he be furnished an undesirable discharge.

On 12 October 1972, the separation authority disapproved the applicant’s request for discharge.

The applicant went AWOL on 30 October 1972.

Records show that the applicant was located in Canada in October 1973 when he applied for permanent admission.

On 12 December 1974, via telephone, the applicant requested to participate in the program established by Presidential Proclamation 4313 of 16 September 1974. His records were reviewed and it was determined that he was eligible for the program. He was instructed by letter, dated 18 December 1974, to report to Fort Benjamin Harrison, Indiana, on 7 January 1975. However, the applicant’s service personnel records contain a letter, dated 17 January 1975, which states that the applicant did not report as directed on 7 January 1975 and that he was advised that the program terminated on 31 January 1975.

The applicant was apprehended by civil authorities at John F. Kennedy International Airport when he arrived in New York on 10 December 1976. He was returned to military control on 24 December 1976.

Charges were preferred against the applicant on 27 December 1976 for being AWOL from 30 October 1972 to 24 December 1976.

On 29 December 1976, 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 elected not to submit a statement on his own behalf.

The intermediate commander concurred with the applicant’s request for discharge and recommended that he be furnished an undesirable discharge.

On 18 January 1977, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge.

Accordingly, on 25 January 1977, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served 1 year, 1 month and 28 days of total active service with 2084 days of lost time due to AWOL.

There is no indication in the available records which shows 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, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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 Board considered the applicant’s contention that his services rendered on foreign soil during the Vietnam War should entitle him to an upgrade in his discharge to general. However, in addition to his service in Vietnam from
8 November 1970 until he was granted emergency leave on 21 December 1970, the Board also reviewed his record of service which included 2084 days of lost time due to AWOL. The Board determined that the applicant’s military record was not satisfactory and that he was not entitled to a general discharge.

2. 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.

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

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____ MHM____ ALR_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070819
SUFFIX
RECON
DATE BOARDED	20020618
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19770125
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.