MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 21 November 2002
         DOCKET NUMBER: AR2002074760

         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
Ms.	Antoinette Jones-Farley		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Lester Echols		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 essence, that his undesirable discharge (UD) be reviewed and upgraded to an honorable discharge.

APPLICANT STATES: In effect, that he has 11 months and 2 days of honorable wartime and/or good time service. In support of his case he submits a copy
of his DD Form 214 (Armed Forces of The United States Report of Transfer or Discharge) dated 26 May 1969, a OMB Form 21-4138 (Department of
Veterans Affairs Statement in Support of Claim) dated 3 May 2002, a VA Form 21-4142 (Department of Veterans Affairs Authorization and Consent to Release Information To The Department of Veterans Affairs (VA) dated 13 May 2002 and a undated response letter from the VA, denying his application for disability pension benefits. He adds, that he is seeing doctors for Post Trauma Stress Disorder and taking medication for “ADD & ADHD” that resulted in mini strokes while in the service.

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

On 19 September 1967, he enlisted in the Regular Army for 3 years. He completed training in military occupational specialty (MOS) 11B10 (Infantryman). On 10 March 1968, he was assigned to Fort Lee, Virginia for Airborne Training.

On 18 April 1968, the applicant received non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being
absent without leave (AWOL) from 1 April to 15 April 1968. His punishment included reduction to pay grade E-1, forfeiture of $50.00 dollars pay per month for 2 months, restriction and extra duty for 45 days. On 4 June 1968, he was transferred to Fort Bragg, North Carolina for duty.

On 1 November 1968, the applicant was convicted by a special court-martial (SPCM), of two specifications of being AWOL from 20 June to 11 July 1968 and from 2 August to 9 September 1968. He was sentenced to confinement with hard labor for 4 months and forfeiture of $73.00 pay. On 6 November 1968,
the convening authority approved the sentence as adjudged. On 25 November 1968, the unexecuted portion of the confinement at hard labor for 4 months was suspended for 4 months, and remitted without further action.

On 7 March 1969, the applicant was convicted by a second SPCM, of one specification of being AWOL from 21 December 1968 to 11 February 1969. He was sentenced to confinement with hard labor for 6 months, and to forfeiture of $73.00 pay. On 14 March 1969, the convening authority approved the sentence as adjudged.

On 19 April 1969, charges were preferred against the applicant for being
AWOL from 16 to 26 March 1969.

On 25 April 1969, he consulted with legal counsel and voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial. He acknowledged that he understood the consequences of receiving a UD. He also acknowledged that he understood that he would be ineligible to receive veterans benefits. He declined to submit a statement in his own behalf. The chain of command recommended that the applicant be separated with a UD. On 19 May 1969, the separation authority approved his separation and directed issuance of a UD Certificate.

On 26 May 1969, he was separated, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial and issued a Undesirable Discharge Certificate. He completed 11 months and
2 days of creditable active service and had 139 days of lost time. The highest pay grade he attained was E-4.

The applicant’s medical records are not contained in the available records.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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 submit a request for a discharge for the good of the service in lieu of trial by court-martial. The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. 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.

Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.

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 discharge in lieu of trial by court-martial, after consultation with counsel, tend to show he wished to avoid the court-martial and the punitive discharge that he might have received. Further, he acknowledged that he understood that he would be deprived of VA benefits and that he may expect to encounter substantial prejudice in civilian life because of a undesirable discharge. The discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2. The applicant’s discharge was appropriate because the quality of his service was not consistent with the Army’s standards for acceptable conduct and performance of duty by military personnel. The character of the discharge is commensurate with his overall record.

3. There is no available evidence of record and the applicant provides none to show that he had any medical condition which indicates he was unfit for separation.

4. The Army cannot speak for any decisions made by the VA. The VA, operates under its own policies and regulations and also assigns pension benefits based on their interpretation of good time.

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

____FNE __ LE _ ___TL _ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074760
SUFFIX
RECON
DATE BOARDED	2002/11/21
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1969.05.26
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	A94.07
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.	A123.01
2.
3.
4.
5.
6.