MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 26 November 2002
         DOCKET NUMBER: AR2002077296


         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Roger W. Able		Member
Mr. Hubert O. Fry		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: Reconsideration of his earlier appeal to correct his military records by upgrading his undesirable discharge to an honorable discharge.

APPLICANT STATES: In effect, that he volunteered for service and entered the United States Army in September 1967. He states that he attended basic and advanced individual training and was later sent to Fort Polk for Republic of Vietnam (RVN) training. He also states that he arrived in Vietnam in February 1968 and was assigned to "Company B, 1st Battalion, 1st Cavalry Division."

The applicant states that he was wounded by shrapnel in June 1968 and was awarded the Purple Heart. He claims that he received a gunshot wound by enemy fire in January 1969 and received a second award of the Purple Heart and an Army Commendation Medal for his heroic efforts during the battle.

After returning from Vietnam, he states that he was stationed at Fort Riley, Kansas, and was granted 30 days of leave.

The applicant states that he endured many months of harassment and received no support for his dependence on alcohol that he developed in Vietnam. He also states that his own internal battle continued after he left Vietnam's "tormented soil" where many of his friends died.

He contends that he served his country honorably in combat in Vietnam.

He further states that he fought for his country and saved the lives of his fellow soldiers. He claims that his rewards were the Bronze Star Medal, the Army Commendation Medal, two awards of the Purple Heart, the Combat Infantryman Badge, the Southeast Asia Service Medal, and all of the physical, mental and emotional scars. He also claims that his final reward was his tainted discharge and erroneous DD Form 214.

The applicant submits a supplemental letter in support of his application.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect consideration by the Army Board for Correction of Military Records (ABCMR) of Docket Number AC87-09957 on 8 February 1989.

The applicant’s contentions are new arguments which will be considered by the ABCMR.

The applicant enlisted in the Army on 22 September 1967 for a period of three years. He completed basic training and was assigned to Fort Leonard Wood, Missouri, for advanced individual training (AIT).
While in AIT, the applicant received nonjudicial punishment for disobeying a lawful order and for being disrespectful towards a sergeant.

Records show the applicant served in Vietnam as a member of Company D, 588th Engineer Battalion from 22 February 1968 through 21 February 1969.

Upon returning to the continental United States, the applicant was assigned to Fort Riley, Kansas.

During his assignment at Fort Riley, the applicant received five nonjudicial punishments and two special courts-martial for the following offenses: (1) for failing to go to his appointed place of duty; (2) for being AWOL from 3 April 1969 to 16 April 1969, 31 July 1969 to 4 August 1969, and 15 December 1969; (3) for damaging government property; (4) for acting in a disorderly manner; (5) for violating a general regulation; (6) for disobeying a lawful order from superior noncommissioned officer (NCO); (7) for being disrespectful in language towards a superior NCO; (8) for being AWOL from 3 March 1970 to 6 March 1970; (9) for being absent from duty on 8 March 1970; and (10) for breaking restriction from company area.

There is evidence of record which shows the applicant received a bar to reenlistment; however, the bar to reenlistment certificate is not present in his personnel records now available to the Board.

Charges were preferred against the applicant on 8 February 1972 for being AWOL from 17 May 1970 to 15 January 1972.

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 Chapter 10 of Army Regulation 635-200. The applicant submitted a statement in his own behalf.

In this statement, he agreed that he was AWOL because of medical problems related to the birth of his son. He also stated that his court-martial for AWOL was unfair and people did not like him. There is no reference to alcohol dependence in his statement.

On 3 March 1972, the separation authority approved the applicant’s request for discharge and directed that an Undesirable Discharge Certificate be issued.

Accordingly, the applicant was discharged on 13 March 1972 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 completed 2 years, 6 months and 14 days of creditable service with 716 days lost time due to AWOL and confinement.

On 22 January 1975, the Army Discharge Review Board denied the applicant's request for an upgrade of his undesirable discharge to a general discharge.

On 8 February 1989, the ABCMR denied the applicant's application wherein he requested upgrade of his undesirable discharge to a general discharge.

On 18 August 1999, the applicant submitted a request for reconsideration by the ABCMR for upgrade of his discharge to honorable. On 11 May 2000, the staff of the ABCMR determined that the applicant did not present any new evidence to indicate a material error or injustice in his case. As a result, his case was closed without action by the Board.

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 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.

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.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.
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. There is no indication that the request was made under coercion or duress.

2. The Board carefully reviewed the statements submitted by the applicant in support of his claim.

3. The Board noted the applicant’s good service in Vietnam. The Board also noted the applicant received five nonjudicial punishments, two special courts-martial, and was AWOL for over 600 days after returning from Vietnam. The Board determined that these offenses outweigh this good service. Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4. The Board considered the applicant's contention that he suffered from alcohol dependence upon return from Vietnam. However, there is no record of such a condition. Further, the applicant makes no reference to alcohol dependence or any other condition in his statement to the separation authority.

5. The applicant has not presented any evidence that the discharge process was flawed, in error or unjust. Therefore, there is no basis for upgrading the applicant's discharge to honorable.

6. Based on the foregoing, the overall merits of the case, including the latest submissions and arguments are insufficient as a basis for this Board to reverse the decision of the ABCMR in Document Number AC87-09957 on 8 February 1989.

7. 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

SAC_____ HOF_____ RWA_____ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002077296
SUFFIX
RECON
DATE BOARDED	20021126
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19720313
DISCHARGE AUTHORITY	AR635-200, chapter 10
DISCHARGE REASON	For the good of the Service-in lieu of trial by court-martial
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	144.0000
2.
3.
4.
5.
6.