MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 October 2002
         DOCKET NUMBER: AR2002074299

         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. 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 to an honorable discharge.

APPLICANT STATES: That it has been 30 years since he served in Vietnam and that he has been an outstanding citizen. He goes on to state that there was a rocket attack on the supply depot compound and when it happened, he got out and went back to the company. When he got to the gate, drugs were planted on him and he was busted and sent to the Saigon Jail. He further states that he is a licensed and registered master plumber in the State of Florida.

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

He was inducted in Coral Gables, Florida on 3 May 1971 and was transferred to Fort Jackson, South Carolina, to undergo his training. He completed his training and on 30 March 1972, he was transferred to Vietnam for duty as a heavy vehicle driver.

On 4 August 1972, the applicant was observed carrying a concealed weapon. Military Police (MP) officials were notified and he was apprehended at the main gate of the compound. A routine search was conducted and the applicant was found to be in possession of 70 plastic vials of heroin, two packets of marijuana and a .38 caliber pistol with 20 rounds of ammunition. He was advised of his rights and elected to exercise them. He was then transported to a hospital, where a urinalysis was conducted.

On 21 August 1972, the applicant’s commander placed him on company restriction. He restricted the applicant to the compound and his place of duty (four miles from the compound) until further notice. Later in the day, the applicant was seen coming through the compound gate, at a time he was supposed to be at his place of duty. The commander called his supervisor and was informed that the applicant had left his place of duty without permission and had been observed leaving the compound in a civilian vehicle. The commander confronted the applicant and informed him that he suspected that he (the applicant) possessed heroin. The commander directed him to empty his pockets and remove his shirt. The applicant removed seven clear plastic vials from his pockets and threw them on the floor. The applicant was then escorted to the MP Station and the evidence was turned in along with the applicant. The powder was tested and determined to be heroin.

On 23 August 1972, an alert was called and the applicant was found to be missing from the company area to which he was restricted. He was the only member missing.

On 24 August 1972, charges were preferred against the applicant for the wrongful possession of heroin and marijuana, carrying a concealed weapon, breaking restriction and failure to go to his place of duty. The maximum punishment he could have received if found guilty of those charges was a dishonorable discharge, confinement at hard labor for 20 years, total forfeiture of pay and allowances and reduction to the lowest enlisted grade.

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 elected not to submit a statement in his own behalf.

The applicant’s chain of command recommended disapproval of his request due to the severity of the charges against him and recommended that he be tried by a court-martial empowered to adjudge a bad conduct discharge.

Despite the chain of command’s recommendation, the appropriate authority (a major general) approved his request on 16 September 1972 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 30 September 1972, 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 28 days of total active service. His awards included the National Defense Service Medal, the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. He had served 6 months and 1 day in Vietnam.

There is no indication in the available records to show 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.

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. 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 and the seriousness of the charges against him.

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__ __jm____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074299
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/10/10
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1972/09/30
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.