MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 August 2002
         DOCKET NUMBER: AR2002071659

         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:

Mr. Fred N. Eichorn		Chairperson
Mr. Ted S. Kanamine		Member
Ms. Lana E. McGlynn		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 a general discharge.

APPLICANT STATES: In effect, that his discharge was too harsh considering that many soldiers could not adjust after serving in Vietnam. He further states that he served two tours in Vietnam, received many awards during his 7 years of service, and was promotable to the pay grade of E-6. He goes on to state that he served his country and did not flee and he now needs medical benefits because he recently suffered a heart attack.

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

He was inducted in Montgomery, Alabama, on 4 August 1965. He indicated at the time of his enlistment that he came from a large family and that his parents were still living in Alabama.

He successfully completed his training and was transferred to Fort Bragg, North Carolina, for duty as a repair parts specialist. He reenlisted on 23 May 1967 for a period of 6 years and a variable reenlistment bonus. He remained at Fort Bragg until he was transferred to Germany on 1 July 1967. He was advanced to the pay grade of E-4 on 26 August 1967.

On 6 February 1968, nonjudicial punishment (NJP) was imposed against him for having alcohol in the billets. His punishment consisted of a reduction to the pay grade of E-3 (suspended for 60 days), extra duty and restriction.

He departed Germany on 23 May 1968 and was transferred to Vietnam on 27 June 1968. He was promoted to the pay grade of E-5 on 7 October 1968. He departed Vietnam on 31 December 1969 and was transferred back to Fort Bragg.

On 8 May 1970, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of a forfeiture of pay, extra duty and restriction.

He departed Fort Bragg on 15 July 1970, with a report date to Oakland Army Base, California, for further transfer back to Vietnam on 21 August 1970. He failed to report as ordered and was reported as being absent without leave until he reported in on 23 August 1970. NJP was imposed on 24 August 1970 and his punishment consisted of a forfeiture of pay.

He was transferred to Vietnam on 26 August 1970. He departed AWOL on 4 September 1971 and remained absent until 10 September 1971. NJP was imposed against him on 19 September 1971 and his punishment consisted of a forfeiture of pay.

On 22 February 1972, NJP was imposed against him for disobeying lawful orders from a noncommissioned officer and a commissioned officer. His punishment consisted of a forfeiture of pay.

He departed Vietnam on 4 April 1972 and was transferred back to Fort Bragg. On 18 September 1972, NJP was imposed against him for being AWOL from 4 September through 16 September 1972. His punishment consisted of a reduction to the pay grade of E-4.

On 31 October 1972, he went AWOL and remained absent until he was apprehended by Federal Bureau of Investigation (FBI) officials in Prattsville, Alabama, on 25 June 1973. At the time of his apprehension, he stated that he would desert immediately upon his release because he was attempting to get a bad conduct discharge. He was returned to military control at Maxwell Air Force Base, was placed in confinement and was then transferred to Fort Benning, Georgia, where charges were preferred against him for the AWOL offense.

On 21 July 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, 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 asserted that he had gotten into debt while attempting to assist his parents who were ill and his wife. He indicated that he needed to take care of his family and requested that his record of service be considered and that he be given a general discharge.

The appropriate authority (a major general) approved his request on 13 August 1973 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 19 September 1973, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 7 years, 4 months and 23 days of total active service and had 266 days of lost time due to AWOL and confinement. His awards included the Army Commendation Medal with two oak leaf clusters, the National Defense Service Medal, the Vietnam Service Medal with four bronze service stars, the Bronze Star Medal, the Parachutist Badge, and the Republic of Vietnam Campaign Medal.

He applied to the Army Discharge Review Board on 6 June 1974, requesting that his discharge be upgraded to a general discharge. He contended at that time that his commander had ensured him that he would receive a general discharge and he ended up with an undesirable discharge instead. The ADRB denied his request on 7 August 1974.

A review of the available records fails to show that the applicant ever attempted to apply for a hardship discharge or compassionate reassignment prior to going AWOL.

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 voluntary 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 was at that time and is still 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. 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.

4. The applicant’s contentions have been considered by the Board. However, they are not sufficiently mitigating to warrant relief when compared to his overall record of service. While the applicant did serve two tours in Vietnam, his disciplinary record as well as record of misconduct clearly warranted the discharge he received.



5. 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.

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

__lem ___ ___tsk __ ____fe __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071659
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/13
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1973/09/19
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.