MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 February 2003
         DOCKET NUMBER: AR2002079813

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Ms. Gail J. Wire		Member
Mr. Robert J. Osborn, II		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 (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES: In effect, that he had just completed a tour in the Republic of Vietnam (RVN), where he had been awarded two Purple Hearts, and he was told he had to return. He claims that at the time he just could not go back because he had enough killing. He states that he now draws a service connected disability for a Post Traumatic Stress Disorder (PTSD) and for the wounds he received in the RVN.

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

On 27 November 1968, he enlisted in the Regular Army for 3 years. He successfully completed basic training at Fort Leonard Wood, Missouri, and advanced individual training (AIT) at Fort Polk, Louisiana. Upon completion of AIT he was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman) and he was assigned to the RVN for his first permanent duty station.

The applicant’s Enlisted Qualification Record (DA Form 20) shows that he arrived in the RVN on 10 May 1969, and he was further assigned to a company in the 21^st Infantry Regiment of the 196^th Infantry Brigade, to perform duties in MOS 11C, as an ammunition bearer. Item 41 (Awards) of the DA Form 20 confirms that he was awarded the Purple Heart and Purple Heart First Oak Leaf Cluster (1^st OLC) for being wounded in action on 3 July and 21 August 1969 respectively.

The applicant’s record also confirms that while serving in the RVN on 26 August 1969, he reenlisted for 3 years and for training in the 71 (Administration) Career Management Field (CMF). There was not reassignment option included as part of his reenlistment contract. However, he was reassigned to 23^rd Administration Company, RVN, for on-the-job training in his new CMF.

On 21 October 1969, after completing just over five months of his one year tour in the RVN, the applicant departed his unit absent without leave (AWOL). He remained away over a year until returning to military control at Fort Riley, Kansas on 24 November 1970.

On 28 December 1970, the applicant departed AWOL from his unit at Fort Riley, and he remained away for nearly 10 months until returning to military control at the Personnel Control Facility, Fort Riley, on 22 October 1971.

On 26 October 1971, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for two specifications of violation of Article 86 of the Uniform Code of Military Justice (UCMJ) for his two extended periods of AWOL.
On 22 November 1971, the applicant consulted with legal counsel and was advised of the basis of the contemplated trial by court-martial and the maximum permissible punishment under the UCMJ. He was also counseled on the effects of his requesting a discharge in lieu of court-martial, and of the rights available to him. Subsequent to this counseling, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200, in lieu of court-martial. In his request, he acknowledged that he understood that if his request for discharge were accepted, he could receive an UD. He also indicated that he was made aware of the ramifications associated with this type of discharge.

On 6 December 1971, the appropriate authority approved the applicant’s discharge request and directed that he receive an UD. On 23 December 1971, the applicant was discharged accordingly. At the time of his separation, he had completed a total of 1 year, 1 month, and 22 days of creditable active military service, and he had accrued 695 days of time lost due to AWOL.

The applicant’s record is void of any medical information that would indicate that he suffered from a physical or mental condition that impaired his ability to serve at the time of his separation processing.

There is no indication in the applicant’s record that he ever applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge within its
15 year statute of limitations.

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.

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 notes the applicant’s contention that his discharge should be upgraded because he completed a tour in the RVN and currently suffers from a PTSD as result of his based on his combat service. However, the Board finds these factors are not sufficiently mitigating to warrant the requested relief.

---

2. The evidence of record confirms that the applicant voluntarily reenlisted for training in a new CMF. However, shortly after being reassigned to an administration unit for on-the-job training, he departed from his unit in the RVN on an extended period of AWOL. Further, once he was returned to military control in the United States, he again departed on a second extended period of AWOL.

3. There is no evidence to suggest that the applicant should have had any expectation that he had completed his tour in the RVN at the time he departed AWOL from his unit in the RVN. Therefore, the Board finds insufficient evidence to support the applicant’s claim that he had completed his tour in the RVN.

4. Although the Board has no reason to question the applicant’s assertion that he now suffers from a PTSD, there is no medical evidence of record to show that he suffered from a physical or mental condition that impaired his ability to serve at the time of his discharge. Thus, the Board finds this factor is not sufficiently mitigating to warrant the requested relief.

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

__RVO__ __GJW _ __ RJO __ DENY APPLICATION




                                                      Carl W. S. Chun
Director, Army Board for Correction

of Military Records

---

INDEX

CASE ID	AR2002079813
SUFFIX
RECON
DATE BOARDED	2003/02/13
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1971/12/23
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 360	144.0000
2.
3.
4.
5.
6.