MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 February 2002
         DOCKET NUMBER: AR2002073717

         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Eloise C. Prendergast		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 discharge be upgraded.

APPLICANT STATES: In effect, that his bad decision to go AWOL has haunted him for 30 years. He submits a 4-page explanation wherein he states that he was having marital problems and that he stayed home with his two daughters while his wife was in prison.

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

The applicant entered active duty on 13 August 1969 on a three-year active duty service obligation. He completed basic combat training, advanced individual training, and basic airborne training without reported incident.

The applicant served in Vietnam in the military occupational specialty (MOS) 11B, light weapons infantryman, with Company B, 3^rd Battalion, 39^th Regiment, 9^th Infantry Division from 2 March 1969 through 1 December 1969. He attained pay grade E-4.

On 2 November 1969, while still in Vietnam, the applicant was honorably separated following 1 year, 2 months, and 20 days. The applicant reenlisted on 3 November 1969 for additional training in MOS 76W, petroleum storage specialist. He returned to the United States and successfully completed the course in March 1970.

The applicant's DD Form 214, dated 2 November 1969, lists the applicant's awards as the National Defense Service Medal, the Vietnam Campaign Medal, and the Vietnam Service Medal.

The applicant was reportedly detained in a civilian jail from 5 January 1971 through 10 January 1971. Upon his release from jail he did not return to his unit and was considered absent without leave (AWOL) as of that date.

The applicant turned himself into the Federal Bureau of Investigation (FBI) on 10 January 1972.

Court-martial charges were preferred against the applicant for being AWOL 366 days.

On 27 January 1972, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulations 635-200, chapter 10. He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge.

In a statement submitted in concert with his request for discharge, the applicant stated that he had gone AWOL due to marital problems and the fact that his wife had been sentenced to 5 years in prison. He stated that he needed to be discharged in order to initiate court action to get full custody of and provide full care for his two children.

The discharge authority approved the applicant's request and directed that the applicant be reduced to the lowest enlisted grade and discharged with the issuance of an Undesirable Discharge Certificate.

The applicant was discharged on 1 March 1972, with an under conditions other than honorable characterization of service. He was shown to have had 2 years, 6 months, and 13 days of creditable service with 371 days of lost time. His Report of Transfer or Discharge (DD Form 214) shows his awards and decorations as "None".

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.

On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. The above criteria were designated primary criteria. Other factors (secondary criteria), including possible personal problems that may have contributed to the acts that led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.



In October 1977, Public Law 95-126 was enacted. This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector. The DOD was required to establish historically consistent, uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs. Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

2. The fact that the applicant's case was not reviewed under the SDRP is an impropriety that needs to be addressed. However, it is speculation to say that, had the applicant's case been reviewed, under the SDRP, that he would have been granted an upgrade and that that the upgrade would have been affirmed under Public Law 95-126. The applicant did not complete a normal tour of duty in Southeast Asia, receive a personal decoration, nor have a prior honorable discharge for a complete period of service.

3. Further, he has failed to provide any evidence to document his reported personal problems or of a good citizenship since the time of discharge

4. Without mitigating factors, the applicant's misconduct, 371 days lost due to civilian incarceration or AWOL, outweighs his 30 months of honorable service and short tour in Vietnam. Therefore, the Board concludes that there is insufficient evidence to grant the requested relief.

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.

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

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INDEX

CASE ID	AR2002073717
SUFFIX
RECON
DATE BOARDED	20030206
TYPE OF DISCHARGE
DATE OF DISCHARGE	19720301
DISCHARGE AUTHORITY	AR 635-200, ch 101
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	A93.07
2.
3.
4.
5.
6.