MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 June 2002
         DOCKET NUMBER: AR2002072744

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Thomas Lanyi		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: In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES: In effect, that he did not receive his orders for reassignment to his next duty station.

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

On 5 September 1967, he was inducted into the Army of the United States for two years. He successfully completed basic training at Fort Gordon, Georgia, and advanced individual training (AIT) at Fort Sill, Oklahoma. Upon completion of AIT he was awarded military occupational specialty (MOS) 13A (Field Artillery) and he was assigned to the Republic of Vietnam (RVN) for his first permanent duty station.

The applicant’s Enlisted Qualification Record (DA Form 20) confirms that the highest grade the applicant attained while serving on active duty was private first class/E-3. It also confirms that he served in the RVN from 28 March 1968 through 25 March 1969, and that during his active duty tenure he earned the following awards: National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal, and 1 Overseas Service Bar. There is no indication that during his combat tour in the RVN, he was ever cited for or earned an award for valor, significant achievement, or service warranting special recognition.

The applicant’s Military Personnel Records Jacket (MPRJ) includes a Record of Proceedings Under Article 15 (DA Form 2627), which confirms that he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 14 September 1968, for carelessly discharging his M-16 Rifle in the command post bunker.

The MPRJ also contains a copy of Special Orders Number 62, dated 14 March 1969, which directed the applicant’s movement to the RVN replacement company for further movement back to the United States and his reassignment to Fort Lewis, Washington. The distribution list contained in these orders indicates that each individual concerned, which included the applicant, would be provided 30 copies of these orders.

The applicant failed to report to his new duty station at Fort Lewis or to ever check in with the United States Army Returnee Reassignment Station, Oakland, California, at the conclusion of his leave. As a result, on or about 24 April 1969, he was declared absent without leave (AWOL) from his organization. He remained away for 624 days until returning to military control at Fort Leonard Wood, Missouri, on 8 January 1971. On 23 March 1971, a court-martial charge was preferred against the applicant for this period of AWOL.

On 24 March 1971, the applicant consulted with legal counsel. After being advised of the basis for the contemplated court-martial for an offense punishable by a bad conduct or dishonorable discharge, and the rights available to him, he elected to voluntarily request discharge for the good of the service in lieu of trial by court-martial. His request shows that he chose not to submit a statement in his own behalf, and further there is no indication that he ever raised the non-receipt of orders as an issue during his discharge processing.

On 20 April 1971, the separation authority approved the applicant’s request for discharge for the good of the service/in lieu of trial by court-martial, and directed that he receive an UD and be reduced to the lowest enlisted rank. On 30 April 1971, the applicant was discharged accordingly.

The separation document (DD Form 214) issued to and authenticated by the applicant with his signature on the date of his discharge, 30 April 1971, confirms that he was separated under the provisions of chapter 10, Army Regulation
635-200, for the good of the service/in lieu of court-martial. This document also verifies that he had completed a total of 1 year, 11 months, and 12 days creditable active military service and that he had accrued 624 days of time lost due to AWOL.

On 2 October 1985, the Army Discharge Review Board (ADRB) denied the applicant’s request that his UD be upgraded to an HD. The ADRB found that the applicant was properly and equitably discharged.

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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an UD.

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 notes the applicant’s contention that the reason he was AWOL was that he had not received reassignment orders, but if finds insufficient evidence to support this claim. The applicant’s MPRJ contains a copy of reassignment orders that were published two weeks prior to his departure from the RVN, which show he was reassigned to Fort Lewis, Washington. Further, there is no indication that he ever raised the non-receipt of orders as an issue during his discharge processing.
2. The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested separation from the Army in lieu of trial by court-martial. Lacking independent evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3. Finally, the Board considered the applicant’s entire record of service, and although the applicant completed a combat tour in the RVN for which he is congratulated, the Board does not find this service was sufficiently meritorious to warrant the requested relief.

4. 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

__JNS__ __EJA__ __TL___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072744
SUFFIX
RECON
DATE BOARDED	2002/06/25
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1971/04/30
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2. 360	144.0000
3.
4.
5.
6.