MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 April 2003
         DOCKET NUMBER: AR2003083710

         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 J. Wagner		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Linda M. Barker		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: In effect, that his Undesirable Discharge (UD) be upgraded to an Under Honorable Conditions (General) Discharge.

APPLICANT STATES: In effect, that he wants to be heard as he explained to his Member of Congress. No one has ever taken the time to listen to him and it has been 27 years too long.

In support of his application, the applicant submitted a two and a half page summary of events that he experienced in his Army service and that he attributes directly to his discharge from the Army. In this summary, the applicant included allegations that he married his first wife under threats that unless he married her she would kill their child and commit suicide; that he volunteered to go to Vietnam because he and his wife were experiencing problems; in Vietnam he was happy for the first time because he was promoted and had his MOS (military occupational specialty) changed to 76Y40; that on his return, he found his wife involved in an affair; that he divorced his wife and went on about his military life; how he was constantly being assigned to units that had supply rooms that were not, in effect, efficiently run and he ended up having to straighten them out; then his former wife started making trouble for him and because she was white, everyone took her side; he put in for a hardship discharge but only whites and blacks got approval; he married his current wife, was promoted to Staff Sergeant and shortly thereafter was "railroaded" and "busted" for sleeping on the job; he spoke to a priest in Lawton who advised him to go AWOL (absent without leave) and turn himself into authorities. He alleges that he was not in his right mind but knew that sooner or later the FBI (Federal Bureau of Investigation) would come after him. On the day they came, his current wife told him that she was pregnant. He was returned to military control and it started all over again. He was subjected to prejudice again. The applicant refers to the pardons given to others who went AWOL and to Canada, but contends that Vietnam Veterans who volunteered to go to Vietnam were treated differently.

In support of his application, the applicant only submitted his self-authored letter summary and a listing of relatives who served in the Armed Forces during wartime.

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

The applicant was inducted into the Army of the United States on 2 May 1966. The applicant was honorably discharged on 5 May 1966 for the purpose of his enlistment in the Regular Army. On 6 May 1966, the applicant enlisted for
3 years in the Regular Army while at the Reception Station, Fort Polk, Louisiana.

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On 20 March 1969, the applicant voluntarily extended his 3-year enlistment of
6 May 1966 to a period of 3 years and 5 months.

On 4 June 1969, the applicant was honorably discharged for the purposes of immediately reenlisting. On 5 June 1969, he reenlisted for 4 years for his present duty assignment, D Company, 94th Engineer Battalion, Nellingen, Germany.

On 7 July 1972, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty, Charge of Quarters, on 2 July 1972. The punishment imposed consisted of a forfeiture of $100.00 for one month, suspended for 30 days, and restriction to the battery and place of duty for
14 days. The applicant did not appeal the punishment.

On 16 August 1972, the applicant accepted NJP under the provisions of Article 15, UCMJ, for absenting himself from his unit on 8 August 1972 and remaining absent until 10 August 1972. The punishment imposed consisted of a reduction to the rank and pay grade of Specialist 4, E-4, forfeiture of $150.00 per month for two months, restriction to the place of duty, place of worship, mess hall and billets for 45 days and extra duty for 21 days. The applicant appealed the punishment, and on 21 September 1972, the superior acting on the appeal suspended the reduction to Specialist 4 and forfeitures, in excess of $50.00 per month, for a period of 6 months.

On 29 May 1973, the applicant voluntarily extended his 4-year enlistment to a period of 4 years and 6 months in order to have sufficient service time remaining to repay a loan.

On 16 November 1973, the applicant reenlisted for a period of 3 years for his present duty assignment. To reenlist, the applicant was required to get a waiver for 2 days lost time due to AWOL.

On 9 May 1974, the applicant received a Letter of Commendation from his battery commander for his outstanding performance of duty as Supply Sergeant during their Annual Service Practice.

The applicant was promoted to the rank and pay grade, Staff Sergeant, E-6, effective 1 February 1975 with a date of rank of 22 January 1975.

On 13 February 1975, the applicant was given a Letter of Reprimand for his thoughtlessness, poor judgment, improper attitude, lack of motivation and

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inexcusable behavior for not being ready for re-inspection of the Battery Supply Room by the Battalion S4 on the same date.

On 6 May 1975, the applicant accepted NJP under the provisions of Article 15, UCMJ, when he was found derelict in the performance of his duties in that he was found asleep behind a group of lockers in the company supply room at
1500 hours by a captain on 5 April 1975, and on 25 April 1975, he was found lying on a bunk in the rear of the supply room at 1015 hours by a lieutenant. The punishment imposed consisted of a reduction to the rank and pay grade of Sergeant, E-5. The applicant did not appeal the punishment.

The applicant departed AWOL from his unit, B Company, 4th Battalion, 31st Infantry, Fort Sill, Oklahoma, on 30 May 1975. He remained AWOL and on
28 June 1975, he was dropped from the rolls of the organization. He remained away from military control until the FBI apprehended him on 28 August 1975 in Loyola Beach, Texas. He was returned to military control and was initially confined at the Naval Brig, Corpus Christi Naval Air Station, Corpus Christi, Texas. On 4 September 1975, the applicant was transported and assigned to the US Army Personnel Control Facility, Fort Hood, Texas, to await actions related to his unauthorized absence.

The evidence shows that on 8 September 1975, court-martial charges were brought against the applicant for the above absence without leave.

The evidence of record shows that on 10 September 1975, the applicant consulted with counsel and submitted a request for discharge for the good of the service. The applicant submitted a statement in his behalf. In this statement, the applicant said, in effect, that he had been in the Army for over 9 years and for the last 7 he had wanted to go to college to major in history, but he was constantly being assigned to units that had supply rooms that were not, in effect, run efficiently and he ended up having to straighten them out. He had asked to go to college but he had constantly been given the run around. Then he was kept in grade for over 26 months because the slot he was assigned to was "frozen." He was finally promoted and when he asked to go to school to learn to do his supply job better, he was refused. He volunteered to go to Vietnam and there he was confronted with the same situation – inefficiently run supply rooms. On his return from Vietnam, he was assigned to Fort Sill and was again assigned to run a supply room. He was doing his best to improve its condition but his commander was black and he didn't care much for Mexican-Americans. He was constantly embarrassed in front of his clerks and the supply room was broken into twice. He kept getting blamed and was given a letter of reprimand. He was "busted." He was very sad about that so he left AWOL.

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In his request, the applicant acknowledged that he understood that he could request discharge for the good of the service because charges had been preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized imposition of a bad conduct or dishonorable discharge. He stated that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person; that by submitting his request for discharge he admitted guilt to the charges; that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service; that he understood he could be denied some or all veterans' benefits as a result of his discharge; that he may be deprived of rights and benefits as a veteran under both Federal and State law; and that he may encounter substantial prejudice in civilian life by reason of an undesirable discharge.

The applicant's chain of command recommended approval of his request and recommended that he be discharged with an undesirable discharge. The separation authority, a lieutenant general, approved the applicant's discharge on 16 September 1975 and directed that he be discharged with an undesirable discharge.

There is no evidence in the applicant's service personnel records that he ever applied for a hardship discharge.

The applicant was discharged on 30 October 1975 in the rank and pay grade, Private, E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of trial by court-martial. His service was characterized as under other than honorable conditions and he was provided an undesirable discharge certificate. On the date of his discharge, he had 9 years,
2 months, and 25 days active Federal service with 94 days lost due to AWOL and confinement. During his Army service, the applicant had earned the Vietnam Service Medal with 2 bronze service stars, the Republic of Vietnam Campaign Medal, the National Defense Service Medal, the Vietnamese Gallantry Cross with Palm Unit Citation, the Army Commendation Medal, and the Good Conduct Medal.

There is no evidence that the applicant 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 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. An undesirable discharge is normally considered appropriate.

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Army Regulation 635-200, defines a general discharge as 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 separation specifically allows such characterization.

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 evidence of record shows the applicant was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.

2. The Board noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, to avoid trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offense under the UCMJ. There is no indication that the request was made under coercion or duress.

3. The applicant’s voluntary request for separation, was administratively correct and in conformance with applicable regulations. 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.

4. While he may now believe that he made the wrong choice, the applicant should not be allowed to change his mind at this late date. Additionally, it is noted that it was the applicant that requested a discharge for the good of the service to avoid the possibility of a punitive discharge and having a felony conviction on his records.

5. The Board also noted that the characterization of service for this type of discharge is normally Under Other Than Honorable Conditions and the applicant was aware of that before requesting discharge.

6. The Board is convinced that the reason for discharge and the characterization of service were both proper and equitable. Further, the Board 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 undesirable discharge to an under honorable conditions (general) discharge.

7. As a soldier with over nine years service, who had attained the rank of staff sergeant, the applicant should have taken advantage of resources available to him and used other avenues to solve his problems rather than absent himself from his unit.

8. There is no evidence and the applicant has provided none to corroborate the allegations made about racial/ethnic prejudices demonstrated against him.

9. 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.

10. 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

__rjw___ __bje___ __lmb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003083710
SUFFIX
RECON
DATE BOARDED	20030408
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19751030
DISCHARGE AUTHORITY	AR 635-200, Chapter 10
DISCHARGE REASON	A94.07
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.9407
3.
4.
5.
6.