MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 October 2002
         DOCKET NUMBER: AR2002076484

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Walter T. Morrison		Member
Mr. Charles Gainor		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 discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES: That he has two prior honorable discharges. He is suffering from post traumatic stress disorder (PTSD). In a letter to the Department of Veterans Affairs (VA), he stated that while in Vietnam his squad was on a mission to a local village when they came under fire. They encountered dead and bloated Viet Cong bodies in the river and he has had an intense fear ever since. When he returned from Vietnam, he started experiencing PTSD hell. He is trying to get help for his service-connected PTSD. As supporting evidence he provides his VA disability claims, a letter from his service officer, copies of one of his prior Reports of Transfer or Discharge (DD Forms 214), and an extract from his Enlisted Qualification Record (DA Form 20) showing he had excellent conduct and efficiency ratings prior to his departing Vietnam.

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

He enlisted in the Regular Army on 31 January 1969. He completed basic combat training and advanced individual training and was awarded military occupational specialty 70A (Clerk). He was honorably discharged on 9 October 1969 (his DD Form 214 for this period is not available) for the purpose of immediately reenlisting on 10 October 1969.

The applicant arrived in Vietnam and was assigned successively to Headquarters and Headquarters Battery, Division Artillery; Headquarters and Headquarters Battery, II Field Force, Vietnam Artillery; and Headquarters and Headquarters Battery, 7th Battalion, 8th Artillery as a clerk typist or mail clerk. He was honorably discharged on 4 February 1971 for the purpose of immediately reenlisting on 5 February 1971. He departed Vietnam on 17 April 1971 enroute to Fort Sam Houston, TX.

On 1 September 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty. On 14 February 1973, he accepted NJP for violating a lawful general regulation by failing to sign in when his leave terminated. He departed on 27 April 1973 enroute to Germany.

The applicant arrived in Germany on 3 June 1973 and was assigned to the 127th Adjutant General Detachment (Postal). On 13 February 1974, he accepted NJP under Article 15, UCMJ for uttering checks and then failing to maintain sufficient funds for payment of such checks in the amount of $1,434.86; for failing to go to his appointed place of duty; for absenting himself from his place of duty; and for dereliction in the performance of his duties by failing to transfer the duty vehicle and trip ticket to his relief driver.
On 8 March 1974, the applicant was awarded primary military occupational specialty 11B (Light Weapons Infantryman). He was assigned to the 1st Battalion, 16th Infantry on 21 April 1974.

On 29 April 1974, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful command to report back to Panzer Kaserne and ride the bus to Hohenfels Training Area.

On 19 December 1975, court-martial charges were preferred against the applicant charging him with being absent without leave (AWOL) from 30 May 1974 to on or about 13 December 1975.

On 19 December 1975, the applicant completed a separation physical examination and was found qualified for separation. On his Report of Medical History (SF 93), he noted that he was in excellent health but also noted that he suffered from depression or excessive worry and nervous trouble and that he had been treated for a mental condition by a civilian doctor. (He provides no evidence of this treatment with his current application.)

On 22 December 1975, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge UOTHC conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He elected not to submit a statement in his own behalf.

On 7 January 1976, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

On 12 January 1976, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial. He had completed 7 months and 20 days of creditable active service during his last enlistment and a total of 2 years, 7 months, and 24 days of creditable active service and had 567 days of lost time.

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

2. 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. There is no indication that the request was made under coercion or duress.

3. It is noted that the applicant indicated on his SF 93 with his separation physical that he had been treated for a mental condition but, as he does not provide any medical documents from that treatment, no determination can be made that his extensive AWOL and other misconduct may have been related to PTSD or some other mental condition. It is noted that he had an opportunity to make a statement with his request for discharge but he failed to do so.

4. The Board acknowledges the applicant's prior service was good; however, that service was recognized with an honorable discharge as indicated on his DD Form 214 for the period ending 5 February 1971. The fact his prior service was good does not warrant granting the relief requested for his last period of service.

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

__INW__ ___WTM___ __CG __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076484
SUFFIX
RECON
DATE BOARDED	2002/10/03
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1976/01/12
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.