MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 October 2002
         DOCKET NUMBER: AR2002078154

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Karen A. Heinz		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: In effect, that his undesirable discharge be upgraded to an honorable discharge.

APPLICANT STATES: In effect, that he believes that his discharge should be upgraded because he served honorably as a combat veteran in Vietnam. He served as long as any draftee in the U.S. Army and has paid dearly for his mistake over the years. He adds that the Board should find it in the interest of justice because he feels that he has served his country.

The applicant submitted no evidence to support neither these contentions nor his request for an upgrade of his discharge.

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

The applicant enlisted in the Regular Army on 11 January 1968 for 3 years as a private, pay grade E-1, with an enlistment commitment for training and assignment in Army Career Group 11 (Armor).

He received his basic combat training at Fort Benning, Georgia, and his advanced individual training at Fort Knox, Kentucky. Upon completion of all required military training, he was awarded military occupational specialty 11E (Armor Crewman) and transferred to the Republic of Vietnam.

He arrived in the Republic of Vietnam on 5 September 1968 and was assigned to B Company, 2^nd Battalion, 34^th Armor, of the 1^st Infantry Division. The applicant completed his overseas tour in the Republic of Vietnam and was returned to the Continental United States (CONUS) and assignment at Fort Hood, Texas. The applicant departed Vietnam on 29 August 1969.

The applicant's military personnel records show that he was promoted to the rank and pay grade, Specialist Four, E-4, on 20 January 1969. This is the highest rank and pay grade that he held while on active duty.

The applicant served without difficulty until 29 December 1969 when he departed absent without leave (AWOL) from his unit, Headquarters and Headquarters Company, 2^nd Brigade, 1^st Armored Division, Fort Hood, Texas. He remained AWOL and was dropped from the rolls of his organization as a deserter on
29 January 1970. His absence continued until he was apprehended by civil law enforcement authorities in Tampa, Florida, on 22 August 1975 and returned to military control at Fort Stewart, Georgia, on 28 August 1975. He was detained and processed at that location, and later, on the same date, he was transported to Fort Gordon, Georgia, for further processing.

---

On 28 August 1975, general court-martial charges were preferred against the applicant for violation of Article 85 of the Uniform Code of Military Justice (UCMJ), Desertion.

On 2 September 1975, Special Orders Number 170, paragraph 263, was published by Headquarters, US Army Signal Center and Fort Gordon, directing that the applicant be confined at the center stockade.

On 25 November 1974, the applicant was notified that he was eligible to participate in the clemency program that had been established by Presidential Proclamation Number 4313, dated 16 September 1974. "To participate in the program, the individual must:

a. Agree to participate in the President's Program.

b. Agree to reaffirm his allegiance to the United States. and

c. Pledge to perform alternate service for a period not to exceed 24 months." (This portion of the program was to be administered by the Selective Service System and entailed performance of work in jobs that promoted the national health, safety, or interest.)

While being processed into the Personnel Control Facility, the applicant completed a FG Form 6215, Personnel Control Record. The answer he provided in response to the question, "Reason for AWOL?" the applicant responded, "just couldn't handle Army after war. Want's out." The applicant was apparently asked if he had known about the amnesty program. He responded, "Yes sir, I did. I thought they would change it."

Neither the basic application for discharge nor the statement submitted by the applicant, if any was made, is in his file. On an unknown date, the separation authority approved the request and directed that an undesirable discharge be issued. On 3 November 1975, the applicant was discharged in compliance with his request.

The Report of Separation from Active Duty, DD Form 214, indicates that the applicant was discharged on 3 November 1975, under the provisions of Army Regulation 635-200, chapter 10, for conduct triable by court-martial and was issued an Undesirable Discharge Certificate.

The applicant was discharged in the rank and pay grade PV1 (Private), E-1, with an Undesirable Discharge (UD) on 3 November 1975. On the date of his discharge, he had 2 years and 24 days creditable service. The applicant had

---

2069 days lost time (378 lost under Title 10 United States Code 972 from 29 December 1969 to 10 January 1971 and 1691 days subsequent to normal expiration of his term of service) due to AWOL and confinement.

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, at any time after the charges have been preferred, 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.

Applicants who apply for discharge from the service under the provisions of Army Regulation 635-200, chapter 10, are required to acknowledge that they understand the nature and consequences of the Under Other Than Honorable Conditions discharge that they might receive; that they understand that they could be denied some or all veterans' benefits as a result of their discharge; that they may be deprived of rights and benefits as a veteran under both Federal and State law; that they are making the request of their own free will without coercion whatsoever from any person; and that under no circumstance do they desire further rehabilitation because they have no desire to perform further military service.

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 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.

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 Board considered the applicant’s contentions that he served as long as any draftee in the Army and is empathetic with his contention that he has paid dearly for his mistake over the years.

2. The evidence of record shows that the applicant was provided an opportunity to participate in the clemency program that was established under Presidential
Proclamation Number 4313 on 16 September 1974. The applicant chose not to

---

accept the terms and conditions that were put before him; and therefore, he did not participate in this program.

3. Even though neither the basic application for discharge nor the statement submitted by the applicant, if any was made, are in his file, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It also noted that the characterization of service for this type of discharge is normally UD and it is presumed, based on established procedures that are followed that the applicant was aware of that before requesting discharge. 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.

4. The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial. Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

5. The evidence of record shows the applicant was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice (UCMJ). The Board is convinced that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.

6. Finally, the Board considered the applicant’s entire record of service. The Board, is convinced that the reason for discharge and the characterization of service were both proper and equitable; further, it has determined that the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his UD to an honorable discharge.

7. 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.

8. 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

__rvo___ __bje___ __kah___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002078154
SUFFIX
RECON
DATE BOARDED	20021024
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19751103
DISCHARGE AUTHORITY	AR 635-200 Chap 10
DISCHARGE REASON	A71.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.0133
3.	144.0144
4.
5.
6.