MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 September 2002
         DOCKET NUMBER: AR2002072838

         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. Elzey J. Arledge, Jr.		Chairperson
Mr. Thomas B. Redfern, III		Member
Ms. Karen A. Heinz		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: In effect, that his undesirable discharge be upgraded to honorable.

APPLICANT STATES: In effect, that he served his country honorably longer than under other than honorable conditions and that the reasons that led to his discharge were the result of his suffering from Post-Traumatic Stress Disorder (PTSD) before the events. In support of his application he submits a PTSD Evaluation Summary, which is self-explanatory and copies of his reports of separation (DD Form 214).

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

He enlisted in Harrisburg, Pennsylvania, on 20 May 1966 for a period of 3 years and training as a pole lineman. He completed his initial training at Fort Jackson, South Carolina, and was transferred to Fort Gordon, Georgia, for additional advanced training.

On 19 November 1966, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order from a commissioned officer. His punishment consisted of a forfeiture of pay, extra duty and restriction.

He completed his training and was transferred to Okinawa on 25 February 1967. He was advanced to the pay grade of E-3 on 17 March 1967.

On 8 July 1967, NJP was imposed against him for breaking restriction. His punishment consisted of extra duty and restriction.

On 13 September 1967, 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-2.

On 29 September 1967, NJP was again imposed against him for three specifications of being absent from his place of duty and for disobeying a lawful order from a superior noncommissioned officer. His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay and extra duty.

On 24 October 1967, NJP was imposed against him for being absent from his place of duty and making a false official statement to a commissioned officer. His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay.

Nonjudicial punishment was again imposed against him twice in November 1967. Once for two specifications of destruction of government property and the other reason is not indicated in the available records. The punishments consisted of forfeitures of pay.

He was transferred to Vietnam on 25 November 1967 and was again advanced to the pay grade of E-3 on 8 December 1967. On 19 January 1968, NJP was imposed against him for sleeping on his guard post. His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

He was eventually advanced to the pay grade of E-3 on 13 June 1968 and on 1 September 1968, he was honorably discharged for the purpose of immediate reenlistment. He reenlisted on 2 September 1968 for a period of 4 years. He departed Vietnam on 16 November 1968 and was transferred to Fort Meade, Maryland. He was advanced to the pay grade of E-4 on 16 January 1969.

On 6 March 1969, NJP was imposed against him for being out of uniform. His punishment consisted of a forfeiture of pay (suspended for 1 month), extra duty and restriction.

He was transferred with his unit on temporary duty (TDY) to Fort Drum, New York on 1 April 1969 and on 5 September 1969, NJP was imposed against him for being absent without leave (AWOL) from 20 August to 4 September 1969. His punishment consisted of a reduction to the pay grade of E-3, extra duty and restriction.

On 12 September 1969, NJP was imposed against him for being AWOL from 5 September to 8 September 1969. His punishment consisted of a forfeiture of pay, restriction and extra duty. In addition, the suspended punishment from his previous NJP was vacated and he was reduced to the pay grade of E-3.

On 25 September 1969, NJP was imposed against him for being disrespectful in language towards a commissioned officer, for breaking restriction and for being AWOL from 12 September to 22 September 1969. His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay.

The applicant went AWOL on 29 December 1969. He remained absent until he was returned to military control on 5 May 1970 and charges were preferred against him for the AWOL offense.

All of the facts and circumstances surrounding his administrative discharge are not present in the available records. However, his records do show that on 12 May 1970, 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 declined to submit a statement in his own behalf.

His DD Form 214 shows that he was discharged under other than honorable conditions on 1 June 1970, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 4 months and 9 days of service during his current enlistment and 3 years, 8 months and 9 days of total active service. He had 134 days of lost time due to AWOL. He was separated on temporary records at the time.

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

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. In the absence of evidence to the contrary, it must be presumed that 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 a tour 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

___eja __ ___kh___ ___tbr___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002072838
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/17
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1970/06/01
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.