MEMORANDUM OF CONSIDERATION


      IN THE CASE OF:



      BOARD DATE:           7 November 2002
      DOCKET NUMBER:   AR2002076280

      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. Edmund P. Mercanti              |     |Analyst             |


  The following members, a quorum, were present:

|     |Mr. Raymond V. O'Connor, Jr.        |    |Chairperson         |
|     |Mr. Thomas B. Redfern               |    |Member              |
|     |Mr. Donald P. Hupman                |    |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)
APPLICANT REQUESTS:  That his discharge be upgraded to a general discharge
under honorable conditions.  He also requests that he be given the records
of all of his medals, and that he be told what he did to warrant an
undesirable discharge.

APPLICANT STATES:  In effect, that he believes that he should be entitled
to benefits from the Department of Veterans Affairs (DVA).  He also states
"Because I would like to know what happen[ed] to me at this time in my
life.  As long as I was on drugs I was a good person."

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

He was inducted and entered on active duty on 12 January 1968, and enlisted
in the Regular Army six days later.  He was awarded the military
occupational specialty of radio operator and served in Vietnam from 26
November 1969 to 27 May 1970.

Between 23 February and 25 November 1969, the applicant accepted
nonjudicial punishment (NJP) under Article 15, UCMJ, on three occasions for
disobeying a lawful order, for failure to go at the time prescribed to his
appointed place of duty, for disobeying a lawful order, and for going AWOL.

On 5 April 1970, court-martial charges were preferred against the applicant
for being AWOL from 1 to 4 April 1970; for disobeying a lawful command; for
resisting apprehension by a military policeman; for stealing a television
set; and for breaking restriction.

On 24 April 1970, the applicant was given a sanity board evaluation.
During that evaluation the applicant explained his version of the
circumstances, which led to his court-martial charges.  The psychiatrist
conducting the evaluation concluded that the applicant was free from any
psychiatric disorder, but did have a personality disorder.  The
psychiatrist cleared the applicant for any action deemed appropriate by his
command.

On 5 May 1970, the applicant requested discharge in lieu of trial by court-
martial in accordance with Army Regulation 635-200, chapter 10.  In that
statement the applicant acknowledged, "I understand that, if this request
for discharge is accepted, I may be discharged under other than honorable
conditions and furnished an Undesirable Discharge Certificate.  I
understand that, as a result of this issuance of such a discharge, I shall
be deprived of many or all Army




benefits, that I may be ineligible for many or all benefits administered by
the Veteran's Administration, and that I may be deprived of my rights and
benefits as a veteran under both Federal and State law."  The applicant
stated in his request that he would not submit any statements in his own
behalf.

The appropriate authority accepted his request and he was issued an
Undesirable Discharge Certificate on 27 May 1970.  He had 2 years, 4 months
and 7 days of creditable service and 3 days of lost time.  His separation
document showed that he was discharged under the provisions of Army
Regulation 635-212.  His separation document shows that he was issued the
National Defense Service Medal, the Vietnam Service Medal and the Vietnam
Campaign Medal.

On 13 November 1972, the applicant's separation document was
administratively corrected to show that he was separated under the
provisions of Army Regulation 635-200.

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 1 December 1977, the Army Discharge Review Board denied the applicant's
request for an upgrade of his discharge.

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 applicant's separation was accomplished in accordance with the
regulations in effect at the time of his separation, and the applicant has
not proclaimed that he was innocent of the charges, which formed the basis
of his request for discharge.  As such, there is no error for the Board to
correct.

2.  The applicant faced court-martial for five violations of the Uniform
Code of Military Justice, and had accepted NJP on three other occasions.
Therefore, it appears that his undesirable discharge was appropriate under
the circumstances.

3.  The applicant's service record does not contain any valorous
decorations which would mitigate his misconduct.
4.  The applicant's entitlement to veteran’s benefits is determined by the
DVA.  As such, that agency and not the Army determine his qualification for
benefits.

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

___tbr ___  ___rvo___  ___dhp _  DENY APPLICATION



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



                                    INDEX

|CASE ID                 |AR                                     |
|SUFFIX                  |                                       |
|RECON                   |YYYYMMDD                               |
|DATE BOARDED            |20021107                               |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)   |
|DATE OF DISCHARGE       |YYYYMMDD                               |
|DISCHARGE AUTHORITY     |AR .  .  .  .  .                       |
|DISCHARGE REASON        |                                       |
|BOARD DECISION          |DENY                                   |
|REVIEW AUTHORITY        |                                       |
|ISSUES         1.       |                                       |
|2.                      |                                       |
|3.                      |                                       |
|4.                      |                                       |
|5.                      |                                       |
|6.                      |                                       |