MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 June 2003
         DOCKET NUMBER: AR2002082573

         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. Samuel A. Crumpler		Chairperson
Ms. Shirley L. Powell		Member
Mr. John T. Meixell		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 (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES: In essence, he was very young when he returned from the Republic of Vietnam (RVN) and just wanted out of the service. He states, that he was scared and could not cope with the training. He adds, that he was proud to have served his country, but is unable to receive medical treatment from the Department of Veterans Affairs (VA) unless he has an HD. In support of his case he provides a letter to the Board, in which he states he does not know what information is actually needed. He further states, that at the age of 17, he entered the Army and completed his military training. He served overseas in Germany for 8 months, reenlisted for 1 year making his enlistment 4 years and
8 months. He then returned to the United States and was assigned to Aberdeen, Maryland, where he completed 4 out of 11 weeks of welding training. He states, with limited knowledge of welding, he further assigned to duty as a driver.
He was again transferred to RVN, received a promotion to E-5 and did what
was expected of him. Upon completing his tour in RVN, he returned home in 1970 and was authorized leave. He states, that after returning from leave, he was told that his records were missing and he was shown as missing in action (MIA). He adds that he did draw partial pay. He was then transferred to Fort Knox, Kentucky, where he was resigned from the service on 18 August 1972. He admits that he does have some bad time and was going through a divorce and that his head wasn’t screwed on right. Now at 52, he wished he would have made a career out of the service. He is now on disability, receiving social security, has high blood pressure, emphysema, is diabetic and is taking heart medication. He reiterates, that his first discharge was honorable and his second discharge shows he received a UD. He adds that in 1972, after having a physical for separation he was told that there was a possibility he could get a medical discharge. He writes, “I am very sick and ill and would love to have a HD. I don’t plan on living another 20 years and this means a lot to me”. He also provides in support of his claim, four character of reference letters from friends and family members and a criminal records check summary from the Butler County Sheriff’s Office, dated 7 November 2002.

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

That prior to the period of enlistment under review, the applicant had one period of honorable service in the Regular Army (RA) from 22 January 1968 through
22 September 1968.

On 23 September 1968, he immediately reenlisted in the RA for 3 years, as a Light Weapons Infantryman. He was credited with a total of 8 months and 1 day of active service. On 14 June 1968, he was transferred to Germany.


On 17 December 1968, the applicant accepted non-judicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 1 to 14 November 1968, and for failing to go to his place of duty. His punishment included forfeiture of $56.00 pay per month for 2 months, reduction to pay grade E-2, restriction and extra duty for 30 days. On
19 December 1969, he was transferred to RVN, for duty.

On 27 January 1970, the applicant accepted his second NJP under Article 15, UCMJ, for being AWOL from 24 to 26 January 1970. His punishment included forfeiture of $30.00 pay per month for 1 month.

On 24 July 1970, his primary Military Occupational Specialty (MOS) was changed to 64B40 (Heavy Vehicle Driver). On 11 December 1970, the applicant returned to the United States and was assigned to Fort Hood, Texas for duty in his MOS.

On 22 June 1971, the applicant was listed as being AWOL from Fort Hood, Texas, and dropped from the rolls as a deserter.

On 19 October 1971, Headquarters, U.S. Army Personnel Control Facility,
U.S. Army Armor Center, Fort Knox, Kentucky, issued the applicant Special Orders Number 102, which shows he returned to military control on 16 October 1971 and he was assigned to that activity.

The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he was AWOL from 28 December 1971 to 16 March 1972 and from 8 May to 14 July 1972.

On 1 August 1972, the applicant’s Standard Form 88 (Report of Medical Examination) shows he received a separation physical, which determined he was fully qualified for separation.

On 14 August 1972, the applicant was reassigned to Fort George G. Meade, Maryland, for separation processing.

The applicant's military records do not contain all the facts and circumstances surrounding the discharge process. However, his record contains Special Orders Number 173, dated 14 August 1972, from Department of the Army, Headquarters U.S. Army Armor Center Fort Knox, Kentucky, that shows the applicant was separated on 18 August 1972.

On 18 August 1972, the applicant was separated under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial and issued an Undesirable Discharge Certificate.

His record shows, that during the enlistment under review, he had completed
2 years, 11 months and 14 days of creditable service with 345 days of lost time due to being AWOL or in confinement. The highest pay grade he attained was pay grade E-5.

The character reference statements submitted in support of the current application consist of the following:

•         A family friend of 28 years stated that the applicant is honest, holds a high moral standard around him and his family. He states that the applicant also works and contributes to his hometown and the people living there.

•         The applicant's youngest sister writes that he is a good brother, a hard worker, and an honest person. She adds that her brother ehelped out his family and his friends as much as possible, until he got sick and was no longer able to do the things that he always liked to do.

•         The applicant’s nephew, who has known him for 24 years, writes that, even though he did not see his uncle every day, he respects him not only as a man, but as a soldier who represented the U.S. in Vietnam. He states, that his uncle’s morality, leadership and advice is very inspiring, since he is a corporal, in the Army. Therefore, he chose to write this letter on Veterans Day. He also can’t begin to think or feel as to what went on in NAM. He states, that he as leader in a medical unit he would hope never to see, what his uncle had in that bloodshed war. He states, that if the “country way” had not been imbedded in his uncle from his dad, he probably wouldn’t have survived in the jungle of NAM. He states that his uncle’s skills in hunting and/or fishing taught him how to survive the empty hardship of being hungry and also taking an initiative to help others around him. He states that his uncle is not only a great man, but he is a big teddy bear that unconditionally loves his nieces, nephews, brothers and sisters and he would do anything for his family. He adds, that his uncle would also give his lung if one of them would need it. The nephew ends his statement by saying that he does not know who is reading this, but the one thing that should stick out would be that his uncle’s generosity, courage, Army values and young animosity as a soldier and is a hero in his families eyes.

•         A family friend of 20 years, standing writes that the applicant served his country and is a Vietnam veteran. He states, that the applicant is also not in good health and some of his health problems could possibly be related to his tour in Vietnam. He states, that the applicant takes quite a bit of medication, which he cannot afford to buy. He also states that the applicant should be entitled to help from the VA, since, he is a veteran with disabilities. He adds that the applicant has worked with him and has seen his health deteriorate. He states that the applicant has a lot of trouble with his breathing, his blood pressure, diabetes and other problems as well. He maintains that the applicant is very limited at what he can do, due to his health problems. That the applicant knows that his discharge papers were incorrect, because he was listed as missing in action and has had a hard time trying to get them corrected. He states, that the applicant has probably missed out on some compensation that would have been awarded to him due to this mix up and that the VA, should take all steps necessary to correct the problem. He adds that the applicant is a family man with wife and a daughter at home, he doesn’t get to get out like he use to, to visit friends and relatives like he would like to. The friend adds that they have been friends for twenty years and feels that the VA should do everything necessary to get the applicant’s discharge updated and award him any benefits that he may be entitled. He states, that the applicant fought in a foreign war for his country and should be recognized for his service.
•         A family friend of 25 years, standing writes that the applicant is a dependable and diligent worker. He adds, that the applicant is generous with his time and talents and has helped her family through many hard times.

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 a request for a discharge for the good of the service in lieu of trial by court-martial. The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. 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 UD.


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

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

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 available records show that the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service. The facts and circumstances surrounding the discharge process are missing; however, his records show the commission of at least one offense that was punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.

2. 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.

3. While the Board has taken cognizance of the applicant's age, his Vietnam service, his personal problems, and his good post-service conduct; none of these factors, either individually or in sum, out weigh the misconduct that led to the discharge.

4. The Army cannot speak for any decisions made by the VA. The VA operates under its own policies and regulations.

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

__SAC _ ___SLP _ __JTM _ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082573
SUFFIX
RECON
DATE BOARDED	2003.06.10
TYPE OF DISCHARGE	UD, UOTHC
DATE OF DISCHARGE	1972-08-18
DISCHARGE AUTHORITY	635-200
DISCHARGE REASON	Ch 10
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	110.00
2.
3.
4.
5.
6.