MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 October 2002
         DOCKET NUMBER: AR2002073414

         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. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Roger W. Able		Member
Mr. John T. Meixell		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: In effect, that when he reenlisted he was promised that he would be stationed in Vietnam. He received orders to Fort Rucker, Alabama and thought he would be reassigned. When he complained about his assignment and the promises made by his recruiter he was ridiculed by members of his chain of command for being so gullible as to believe a recruiter. The more he thought about it, the angrier he became. He concluded that the Army had violated his enlistment contract, so he left Fort Rucker and returned home. He had no contact with the Army until he was arrested by the Federal Bureau of Investigation and turned over to the Army at Fort Polk, Louisiana.

He believes that he was suffering from post-traumatic stress disorder (PTSD) even before he reenlisted. This affected his thinking and behavior and caused him to become absent without leave (AWOL).

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

During a prior period of service, from 12 January 1968 through 5 September 1970, the applicant served approximately 20 months in Vietnam where he attained the rank of specialist four (E-4) and was awarded the Army Commendation Medal for his service as a cook with a combat engineer battalion. He was separated early as an overseas returnee and transferred to the Army Reserve with an honorable characterization of service.

The applicant reenlisted on 22 February 1971 on a 3-year Regular Army enlistment option with no special provisions. He signed a form to the effect that no promises about assignments had been made to him.

There is no available evidence that he ever reported for duty at Fort Rucker after he reenlisted. He was returned to military control on 9 May 1972.

At a 15 May 1972 mental status evaluation, the applicant's behavior was normal. He was fully alert and oriented and displayed an unremarkable mood. His thinking was clear, his thought content normal and his memory good. There was no significant mental illness. The applicant was mentally responsible. He was able to distinguish right from wrong and to adhere to the right.

On 17 May 1972 charges under the Uniform Code of Military Justice (UCMJ) were preferred against the applicant for AWOL from 25 February 1971 to 9 May 1972.

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On 18 May 1972, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial. He acknowledged that he understood the nature and consequences of the other than honorable conditions discharge that he might receive, including that he might be deprived of any benefits administered by the Veterans Administration (VA) and other veteran benefits under State and Federal law. He indicated that statements in his behalf were being submitted.

He submitted a handwritten statement to the effect that he felt harassed by "liars and lifers, people who like to run other people into the ground for no reason."

The immediate and intermediate commanders recommended approval of the request with an undesirable discharge. The separation authority approved the applicant's request and directed that an Undesirable Discharge Certificate be issued.

On 26 May 1972, the applicant was separated with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 10. During this final period of service he had 21 days of creditable service and 468 days lost time.

At a personal appearance hearing on 12 May 1980, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

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 undesirable discharge.

The Manual for Courts-Martial, Table of Maximum Punishments shows that a punitive discharge is authorized for any AWOL offense in excess of 30 days.

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. There is no indication that the request was made under coercion or duress.

2. His service was appropriately characterized by the offense for which he requested discharge in lieu of trial by court-martial and by the circumstances of the discharge.

3. The applicant's wartime service in Vietnam, including the award of the Army Commendation Medal, is acknowledged; however, that occurred during a previous enlistment that had been appropriately characterized by the issuance of an honorable discharge. It does not outweigh the misconduct that represents virtually the entire period of his second enlistment.

4. In the absence of evidence that, at the time of the discharge or the behavior that led to the discharge, the applicant was so incapacitated by mental, emotional, psychological or psychiatric problems that he could not tell right from wrong and adhere to the right the PTSD argument does not demonstrate an error or an injustice in the 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

__RJW__ __RWA__ _JTM ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073414
SUFFIX
RECON
DATE BOARDED	20021010
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19720526
DISCHARGE AUTHORITY	AR635-200, chapter 10 . . . . .
DISCHARGE REASON	A70.00
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.	A99.09
2.	A92.07
3.	A94.13
4.
5.
6.