MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 17 December 2002
         DOCKET NUMBER: AR2002076250

         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 Farley		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. William D. Powers		Member
Ms. Barbara J. Ellis		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 upgraded.

APPLICANT STATES: That the discharge was too harsh for a “Vietnam Veteran.” In support of his application he refers to his military record and all article 15’s. In addition, he submits a copy of his VA Form 21-22 (Department of Veterans Affairs Appointment of Veterans Service Organization as Claimant’s Representative) dated 25 April 2002, a copy of his discharge letter order
from the United States Army Reserve dated 2 March 1970, a copy of his DA Form 20 (Enlisted Qualification Record), a copy of his DD Form 47 (Record of Induction) and copies of his DD Form 214 (Report of Separation) for 24 March 1970 and 11 September 1972.

COUNSEL CONTENDS: That the applicant’s discharge should be upgraded for the following reasons: his discharge was too harsh for a returning RVN veteran; that he was currently diagnosed with Post Traumatic Stress Disorder; that his current character of discharge (UOTHC) prevents veterans from receiving treatment; that there is no longer an undesirable discharge and that he has Kidney cancer related to his exposure from the herbicide called Agent Orange; and that his current discharge prevents treatment in a Veterans Affairs Medical Center.

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

That he had 2 periods of honorable service prior to the period of service under review in United States Army Reserve (USAR) from 24 August 1965 to 23 July 1969 and the Regular Army from 24 July 1969 to 24 March 1970.

On 25 March 1970, he reenlisted in the Regular Army for a period of 6 years, as an Engineer & Power train Repairman and assigned to Fort Lewis, Washington enroute to Germany. On 29 May 1970, he was further transferred to RVN for duty and promoted to pay grade E-5. On 21 April 1971, he returned to the United States and eventually assigned to duty at Fort Ord, California.

On 17 August 1971, non-judicial punishment (NJP) under the provisions
of Article 15, Uniform Code of Military Justice (UCMJ), was imposed for
being absent without leave (AWOL) from 26 June to 12 July 1971 and from
13 July to 23 July 1971. His punishment included forfeiture of $180.00 pay per month for 2 months and reduction to pay grade E-4, suspended for 6 months, unless sooner vacated.






Although the specific facts and circumstances surrounding the applicant’s discharge are not present in the available records, his records do contain a
copy of his DD Form 20, item 44 (Time Lost) that shows his periods of AWOL
as being 26 June to July 12 1971 (17 days), 13 July to 23 July 1971 (11 days), 14 October to 11 November 1971 for 29 days and from 12 November to 8 August 1972 (271 days).

On 11 September 1972, the applicant signed his separation examination, in which he acknowledged that there was no change in his medical condition. In addition, the applicant’s DD Form 214, shows that on 11 September 1971, 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 UD. It also shows that under his current enlistment he had 1 year, 6 months, and 19 days of creditable service with 328 days of lost time due to AWOL.

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.

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. Consideration of other factors (secondary criteria), including possible personal problems, which may have contributed to the acts, which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.





Department of Defense (DOD) Directive 1332.28 provides the policy and guidance for discharge review. It provides, in pertinent part, that when it is determined that the rights of an individual were prejudiced by an error of fact, law, procedure or discretion such error will be considered material if there is substantial doubt that the discharge would have remained the same if the error had not occurred.

Army Regulation 635-200 also provides that an honorable discharge is a separation with honor. 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, or is otherwise so meritorious that any other characterization would be inappropriate.

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

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.

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 discharge should have been reviewed under the SDRP, but this failure is not a material error, within the meaning of DOD Directive 1332.28, because there is no substantial doubt that the discharge would have remained the same.

2. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record. He has not shown otherwise.

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. 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.




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.

5. 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

___LLS _ __WDP _ ___BJE__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076250
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.	A144.00
3.
4.
5.
6.