MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 July 2002
         DOCKET NUMBER: AR2002072055

         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. Raymond V. O’Connor, Jr.		Chairperson
Mr. Richard T. Dunbar		Member
Mr. Kenneth W. Lapin		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.

APPLICANT STATES: That he did his job and he knows he made mistakes, but when he was sent to Vietnam, he did not argue and in fact volunteered to serve 2 more years.

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

He enlisted in Jacksonville, Florida, on 28 June 1966 for a period of 3 years and airborne training. He successfully completed his training as an infantryman and was transferred to Vietnam on 6 January 1967, for duty as an infantryman. He was subsequently transferred to a Military Police (MP) Battalion for duty as a security guard. After serving in Vietnam for 18 months, he was promoted to the pay grade of E-5 on 10 July 1968, the same day he departed Vietnam for an assignment to Germany.

He served in Germany from 19 September 1968 to 29 August 1969 and was transferred back to Vietnam on 11 January 1970. He served as a team leader in an MP Battalion and was promoted to the pay grade of E-6 on 1 August 1970. He departed Vietnam on 4 December 1970 and was transferred to Fort Sill, Oklahoma.

On 18 June 1971, nonjudicial punishment (NJP) was imposed against him for two specifications of failure to go to his place of duty. His punishment consisted of restriction and extra duty for 14 days.

He remained at Fort Sill until he was transferred back to Vietnam on 17 August 1971. He served in the same unit in Vietnam that he served during his last tour and remained there until 20 April 1971, when he was transferred to Fort Hood, Texas.

On 5 July 1972, the applicant went absent without leave (AWOL) and remained absent until he was returned to military control on 29 August 1972, at Fort Dix, New Jersey. NJP was imposed against him on 31 August 1972 for the AWOL offense and his punishment consisted of a forfeiture of pay.

On 2 October 1972, he departed AWOL from Fort Dix and remained absent until he was returned to military control at Fort Campbell, Kentucky on 15 May 1973 and charges were preferred against him. He was convicted by a special court-martial on 13 June 1973 of being AWOL from 2 October 1972 through




14 May 1973. He was sentenced to confinement at hard labor for 45 days and a reduction to the pay grade of E-1 (suspended for 6 months and to serve in the pay grade of E-4).

On 22 June 1973, an investigation was initiated by the Criminal Investigation Division (CID) to determine if the applicant was guilty of bigamy and fraud against the United States. CID officials had discovered evidence to show that the applicant was married to two different women, one in New Jersey in December 1969 and one in El Paso in January 1971. There was no divorce decree for the first marriage and it was discovered when the applicant attempted to file a claim for a change in benefits.

He was transferred to Fort Benning, Georgia on 2 August 1973 and on 13 August 1973, NJP was imposed against him for being absent from his place of duty. His punishment consisted of a reduction to the pay grade of E-3 (suspended for 60 days), a forfeiture of pay (suspended for 60 days) and extra duty.

He again went AWOL on 11 September 1973 and remained absent until 15 September 1974, when charges were preferred against him. He was convicted of the AWOL offense on 5 October 1973 and was sentenced to be reduced to the pay grade of E-3, a forfeiture of pay and restriction.

Meanwhile, on 20 September 1973, the applicant’s commander initiated a bar to reenlistment against the applicant. He cited as the basis for his recommendation, the applicant’s disciplinary record, his failure to respond to numerous counseling sessions and rehabilitative efforts, and an ongoing CID investigation for fraud. The applicant elected not to submit a statement in his own behalf and the bar to reenlistment was approved on 16 October 1973.

On 30 November 1973, NJP was imposed against him for missing movement. His punishment consisted of a reduction to the pay grade of E-2 and extra duty.

He again went AWOL on 4 December 1973 and remained absent until he was returned to military control at Fort Campbell on 14 January 1974, where charges were preferred against him.

On 6 February 1974, 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 very serious pay problems, his family was having trouble making it and he believed that in light of his debt status, he could aid his family better by getting a job and helping his wife.

The appropriate authority (a major general) approved his request on 20 February 1974 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 28 February 1974, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 6 years, 7 months and 7 days of total active service and had 389 days of lost time due to AWOL and confinement. His awards included the Army Commendation Medal, the Good Conduct Medal, the National Defense Service Medal, the Vietnam Service Medal with one silver service star and two bronze service stars, the Combat Infantryman Badge, and the Republic of Vietnam Campaign Medal.

The CID investigation was completed on 20 March 1974, subsequent to the applicant’s discharge. CID officials recommended that the commander forward the report to the appropriate civilian Federal investigative agency for the purpose of determining the feasibility of prosecution in United States Federal Court. There is no indication in the available records to show what final action was actually taken.

He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge in September 1983 contending that he was working in the medical field and had progressed as far as he could with the discharge he had and expressed a desire to be someone in life. The ADRB considered his service in Vietnam and his awards as well as his disciplinary record. However, the board strongly felt that in the absence of anything offered by the applicant in mitigation for his acts of indiscipline, the negative aspects of his service clearly supported the command’s decision to accept his voluntary request for discharge in lieu of trial by court-martial and its characterization of is service as undesirable. The ADRB unanimously denied his application on 20 September 1984.

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 length of his absences during a short period of time.

4. The applicant’s contentions and supporting documents 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 three tours in Vietnam, his disciplinary record as well as the lack of mitigating circumstances to explain his 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

___rtd___ __kwl ___ __rvo ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072055
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/07/25
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1974/02/28
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.