MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 February 2003
         DOCKET NUMBER: AR2002078328

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		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 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 undesirable discharge be upgraded to a general discharge.

APPLICANT STATES: In effect, that he had three or so punishments under Article 15 and they were all due to his being under the influence of illegal substances while serving in Vietnam and afterwards because he developed a drug problem there.

COUNSEL CONTENDS: In effect, that the applicant began using drugs in Vietnam to run away from the everyday stress of living in a combat area without a place of safety. He reached a point in life where he could not cope with daily life without the help of drugs. He has now come to terms with the problem and desires an upgrade of his discharge so he can begin to live a more productive life.

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

He enlisted on 30 September 1964 for a period of 3 years. He completed his training and was transferred to Germany for duty as a cook. He was advanced to the pay grade of E-3 on 30 August 1965 and on 4 June 1966, he was transferred to Fort Bragg, North Carolina. He was honorably discharged on 29 June 1966, for the purpose of immediate reenlistment.

On 30 June 1966, he reenlisted for a period of 4 years. He was transferred to Vietnam with his unit on 28 September 1966.

On 6 November 1966, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty. His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 28 March 1967, NJP was imposed against him for discharging a shotgun in the arms room. His punishment consisted of a forfeiture of pay.

The applicant was advanced to the pay grade of E-4 on 17 May 1967. He remained in Vietnam until 21 April 1968, when he was transferred to Fort Ord, California.

On 23 July 1968, NJP was imposed against him for being absent without leave (AWOL) from 1 July to 19 July 1968. His punishment consisted of a reduction to the pay grade of E-3.

On 20 August 1968, he was transferred to Fort Eustis, Virginia. On 15 November 1968, NJP was imposed against him for violating a lawful general order not to have alcoholic beverages in the building. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, extra duty and restriction.
On 20 December 1968, NJP was imposed against him for damaging government property (spray painted a light globe, venetian blinds, door and walls). His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay extra duty and restriction.

He was convicted by a special court-martial on 20 January 1969 of being AWOL from 22 December 1968 to 5 January 1969 and breaking restriction. He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay. He was transferred to the Correctional Holding Detachment at Fort Belvoir, Virginia, to serve his confinement and on 21 April 1969, the unserved portion of his sentence to confinement was suspended unless sooner vacated. He was then transferred to Fort Meade, Maryland.

On 8 August 1969, charges were preferred against the applicant for misappropriating an Army jeep on 14 July 1969 and for being AWOL from 15 July to 5 August 1969.

Also, on 8 August 1969, his commander initiated action to bar him from reenlistment. He cited as the basis for his recommendation the applicant's disciplinary record, his unsatisfactory conduct and efficiency, his substandard performance and his failure to maintain acceptable standards required for service in the Army. The applicant acknowledged that he understood his rights and the reasons cited by the commander and elected not to submit matters in his own behalf. The appropriate authority approved the bar to reenlistment on 26 September 1969.

On 16 September 1969, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.

The appropriate authority approved his request for discharge on 31 October 1969 and directed that he be furnished with an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 7 November 1969, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 4 years, 5 months and 20 days of total active service and had 228 days of lost time due to AWOL and confinement.

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 charges have been preferred, submit a voluntary request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions was at that time and is still 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. 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.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering his undistinguished record of service and disciplinary record.

4. The Board has noted the applicant's contention that his acts of misconduct were precipitated by the use of illegal substances. While this may have actually been true, it is not substantiated in the evidence of record that such was the case. Accordingly, the Board finds that there is no basis to upgrade his discharge.

5. 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.

6. 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

__ja ____ __ecp ___ __fe ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078328
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/02/06
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1969/11/07
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GOOD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00
2.
3.
4.
5.
6.