MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 October 2002
         DOCKET NUMBER: AR2002075993

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Richard T. Dunbar		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 a general discharge or an honorable discharge.

APPLICANT STATES: That he was unfit for military service because he was on drugs and was not responsible for his duty as a soldier. The applicant did not submit any documents in support of his application.

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

The applicant enlisted in the Regular Army on 28 September 1967 for a period of three years. He completed training as a field artilleryman and was honorably discharged on 4 August 1968. He reenlisted on 5 August 1968 for a period of six years. He served in Vietnam from 22 July 1968 through 23 July 1969.

While assigned to Vietnam, the applicant received two nonjudicial punishments for discharging a M-79 grenade launcher without proper authority and for being absent from guard duty.

After returning to the continental United States, the applicant received five nonjudicial punishments for the following offenses: (1) failing to go to his appointed place of duty; (2) failing to obey a lawful regulation by driving a privately owned vehicle without a driver's license; (3) failing to obey a lawful
order issued by a staff sergeant; (4) being absent from his place of duty; and
(5) disobeying a lawful order (DOLO) issued by a superior noncommissioned
officer (NCO).

On 18 May 1970, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 11 April 1970 to 12 April 1970 and from 16 April 1970 to 19 April 1970 and for DOLO from a superior NCO on three separate occasions. He was sentenced to confinement at hard labor for 3 months, forfeiture of $25.00 pay month for 3 months and reduction to private PV1.

The applicant's DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 15 December 1970 to 29 December 1970.

Court-martial charges were preferred against the applicant in December 1970; however, his Charge Sheet is not present in his personnel records.

On 28 January 1971, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all benefits administered by the Veterans Administration if an undesirable discharge were issued. The applicant submitted statements in his own behalf.

The applicant underwent a psychiatric evaluation on 25 February 1971 which revealed that he did not have a psychiatric disorder that would prevent administrative action. The psychiatrist stated that, "he is rational, coherent and oriented to time, place and person. There is no indication of psychosis or severe neurosis in this man at this time." The applicant was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

On 1 March 1971, the applicant underwent a separation medical examination and was found qualified for separation with a physical profile of 111111.

The applicant's unit and intermediate commanders recommended approval of the request for separation with an undesirable discharge.

On 19 March 1971, the separation authority approved the applicant’s request for discharge and directed issuance of an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged on 6 April 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He had 2 years and 6 months of creditable service on his current enlistment with 62 days of lost time due to AWOL and confinement. He completed 3 years, 4 months and 7 days total active military service.

On 19 September 1979, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge to honorable or general.

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.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

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. There is no indication of procedural errors which would tend to jeopardize his rights or that his request for a chapter 10 discharge was made under coercion or duress.

3. Records show the applicant received seven nonjudicial punishments, a special court-martial and was AWOL on three separate occasions for a total of 62 days.

4. The Board determined that the applicant’s overall military service did not meet the standards of acceptable conduct and performance of duty for Army personnel sufficient to warrant a general or an honorable discharge. Therefore, the characterization of the applicant’s current discharge is appropriate considering all the facts of the case. There also is no apparent error, injustice, inequity, or change in policy or standards on which to base recharacterization of his discharge to general or honorable.

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

JL_______ MVT___ RTD_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075993
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021017
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19710406
DISCHARGE AUTHORITY	AR635-200,chapter 10
DISCHARGE REASON	For the good of the Service
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	144.0000
2.
3.
4.
5.
6.