MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 6 February 2003
         DOCKET NUMBER: AR2002076496


         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. Fred N. Eichom		Chairperson
Mr. James E. Anderholm		Member
Ms. Eloise C. Prendergast		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         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 the deceased former service member’s (FSM’s) undesirable discharge be upgraded to honorable.

APPLICANT STATES: That she, the FSM’s wife, believes that an injustice occurred based on his mental state at the time of discharge. She adds that he served in the Republic of Vietnam (RVN) and upon his return was mentally unbalanced, needy, unable to face life and the pressures of being stateside. In addition, she states he could have received the amnesty, but he didn’t apply for it. She adds that she discovered his discharge status only after his death on
7 January 2002. She also feels that he loved his country and deserves to have his discharge upgraded. In support of the case the FSM wife submits a copy of their Certificate of Marriage, dated 28 May 1998, a copy of his registered Certificate of Death, dated 10 January 2001 and an extensive detailed letter outlying the reasons for a discharge upgrade.

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

On 29 April 1969, the applicant enlisted in the Regular Army (RA) for 3 years. He completed military training and was awarded military occupational specialty (MOS) 63B20 (Wheel Vehicle Mechanic) on 26 August 1969.

On 26 September 1969, he was transferred to Germany for duty. On 5 April 1970, while still stationed in Germany, he received an honorable discharge. He was credited with completing 11 months and 6 days of creditable service and
11 months and 6 days of overseas duty. On 14 April 1970, he reenlisted in the RA for 3 years, in pay grade E-4 as a Wheel Vehicle Mechanic.

On 7 June 1970, the applicant was transferred from Germany to the Republic of Vietnam, for duty.

Evidence of record shows that the applicant had repeated instances of military misconduct for which he received seven non-judicial punishments (NJPs) under Article 15, Uniform Code of Military Justice (UCMJ), on 5, 13 and 28 September 1970, 13 and 20 October 1970, 7 November 1970 and again on 24 April 1971.
These offenses included: twice failing to go to his appointed place of duty; wrongful appropriation and damage to a government 21/2 ton truck, and careless discharge of a M127 illumination flare. His punishments included reduction from pay grade E-4 to E-1.

On 30 April 1971, he returned from overseas and assigned to Fort Riley, Kansas, for duty.

Evidence of record also shows that the applicant had court-martial charges preferred against him on 20 January 1972, for two specifications of being AWOL from 26 July 1971 to 14 September 1971 and from 27 September to 18 January 1972.

On 25 January 1972, the applicant consulted with legal counsel, and requested discharge under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court martial. However, on 8 February 1972, the applicant was again placed in a AWOL status, before completion of the chapter 10 discharge.

On 16 March 1976, the applicant was apprehended and returned to military control at Fort Dix, New Jersey.

On 25 March 1976, court-martial charges were preferred against the applicant
for being AWOL from 8 February 1972 to 17 March 1976, from 26 July 1971 to
14 September 1971 and from 27 September 1971 to 18 January 1972. On the same day his separation examination which found him to be qualified for discharge with a physical profile of 1A.

On 26 March 1976, the applicant consulted with legal counsel and voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial. He was advised that the offenses for which he was charged could lead to an undesirable discharge (UD). He acknowledged that he understood the ramifications of receiving a UD, and that, he would be deprived of many or all Army Benefits, and that he might be ineligible for many or all benefits administered by the Veterans Administration. He did not submit a statement in his own behalf.

On 31 March 1976, his chain of command recommended approval of his request for an UD.

On 5 April 1976, the separation authority approved the request and the
applicant was separated with an Undesirable Discharge Certificate. His
DD Form 214 shows that he had 1 year, 5 months and 13 days of creditable service and 1660 days of lost time. The highest pay grade he attained was E-4.

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.

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

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

Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973. Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights. The clemency discharge did not effect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration. Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial. By Presidential Memorandum of 19 January 1977, signed as he left office, President Ford extended his Vietnam Era Clemency Program to provide that approximately 700 deserters who had been wounded in Vietnam or who had earned an award for valor would have their discharges upgraded to one under honorable conditions.

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 provision 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. Absent convincing evidence that, at the time of the discharge or the behavior that led to the discharge, the applicant was so impaired by psychiatric, psychological, mental, or emotional problems that he could not both tell right from wrong and adhere to the right, the contention of mental problems does nothing to demonstrate an error or an injustice in the discharge.

3. In referring to amnesty the FSM’s wife may have been referring to Presidential Proclamation 4313 or the follow-on extension provided by President Ford. However, these programs would not have applied to the FSM, because he was discharged after March 1973 or had not earned an award for valor.

4. Therefore, the type of discharge directed and the reason for discharge was proper and equitable, considering the facts of the case.

5. In order to justify correction of a military record, the FSM or FSM’s wife must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. No evidence has been submitted that would satisfy this requirement.

6. In view of the foregoing, there is no basis for granting the request for any relief.

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 _ ___JEA ___ECP_ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076496
SUFFIX
RECON
DATE BOARDED	2003-02-06
TYPE OF DISCHARGE	UD certificated
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR635-200, Ch 10 . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.	A110.02
2.	A94.07
3.
4.
5.
6.