MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 August 2002
         DOCKET NUMBER: AR2002072735

         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)

---

APPLICANT REQUESTS: That his general discharge be upgraded to honorable.

APPLICANT STATES: In effect, that his overall record of service, which includes two tours in Vietnam, many awards and decorations and almost 6 years of service, coupled with the fact that his marital, family, personal and financial problems impaired his ability to serve, should be considered in upgrading his discharge. He further states that he was given a general discharge only after speaking with the commanding general at the time. He goes on to state that an honorable discharge will allow him to get educational benefits after he is released from prison and will allow him to start a new life.

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

He enlisted in Dallas, Texas, on 7 September 1965 for a period of 3 years. He completed his training and was transferred to Fort Lewis, Washington, for duty as an engineer supply parts specialist.

On 13 May 1966, nonjudicial punishment (NJP) was imposed against him for being absent without leave from 9 May to 11 May 1966. His punishment consisted of a reduction to the pay grade of E-1 (suspended for 30 days), extra duty and restriction.

He remained at Fort Lewis until he was transferred to Vietnam with his unit on 21 July 1966. He was advanced to the pay grade of E-3 on 28 July 1966.

He reenlisted on 8 June 1967, for a period of 4 years and assignment to Germany. He departed Vietnam on 10 June 1967 and arrived in Germany on 16 August 1967. He was advanced to the pay grade of E-4 on 24 August 1967.

On 27 November 1967, NJP was imposed against him for being AWOL from 31 October to 19 November 1967. His punishment consisted of a reduction to the pay grade of E-3, extra duty and restriction.

He volunteered for duty in Vietnam on 27 November 1967 and departed Germany on 14 May 1968, with a report date to Oakland Army Base, California, on 9 June 1968. He failed to report as ordered and was reported as AWOL on 9 June 1968. He remained absent until he surrendered to military authorities at Oakland on 25 July 1968 and charges were preferred against him at the Presidio of San Francisco, California.

He was convicted by a special court-martial on 21 August 1968 of being AWOL from 9 June through 25 July 1968. He was sentenced to confinement at hard labor for 3 months; however, the convening authority suspended the punishment for a period of 3 months, unless sooner vacated.

The applicant was then transferred to Fort Rucker, Alabama, on 25 October 1968 and on 26 February 1969, he was convicted by a special court-martial of being AWOL from 13 January to 10 February 1969. He was sentenced to perform hard labor for 6 months and to have $100.00 pay per month detained for 3 months and to be held until completion of his hard labor. The convening authority approved only so much of the sentence as provided for hard labor for 3 months and detention of $100.00 for 3 months.

The applicant was transferred back to Vietnam on 16 June 1969 and was promoted to the pay grade of E-5 on 11 March 1970. He departed Vietnam on 15 June 1970 and was transferred to Fort Riley, Kansas.

On 8 December 1970, NJP was imposed against him for being AWOL from 21 November through 30 November 1970. His punishment consisted of a reduction to the pay grade of E-4 and a forfeiture of pay.

He again went AWOL on 27 December 1970 and remained absent until he was returned to military control at Fort Polk, Louisiana, on 8 April 1971, where charges were preferred against him on 14 April 1971.

On 15 April 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 asserted that his AWOL problems were the result of his family having severe financial difficulties and his wife being dissatisfied with his being in the Army. He further stated that he believed that based on his Vietnam service and his individual and unit awards, he deserved a general or honorable discharge, but that he had to go home to take care of his family and would accept an undesirable discharge if he had to do so.

His chain of command interviewed him and recommended that he receive a general discharge.

The appropriate authority (a major general) approved his request on 7 May 1971 and directed that he be issued a General Discharge Certificate.

Accordingly, he was discharged under honorable conditions on 12 May 1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 5 years, 1 month and 13 days of total active service and had 207 days of lost time due to AWOL. His awards included the National Defense Service Medal, the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. There is no indication that he ever received any individual awards.

There is no indication that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. There is also no indication that he ever sought assistance for his problems or applied for a hardship discharge or compassionate reassignment before 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. While an honorable or general discharge may be issued, 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 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 his extensive absences do not warrant a fully honorable discharge.

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

---

INDEX

CASE ID	AR2002072735
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/13
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1971/05/12
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.