MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 October 2003
         DOCKET NUMBER: AR2003084607

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Kathleen A. Newman		Chairperson
Mr. Lester Echols		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 be upgraded to honorable or general.

APPLICANT STATES: In effect, that he received a severe back injury due to an accident with a five-ton truck in Vietnam. He contends that he never fully recovered from his back injury, yet he was returned to airborne status. He states that when he advised his commanding officer that he could not perform the physical aspects of the billet he was told, "you are not a man." He contends that his morale was at an all time low, that he was not offered any alternatives and that he was not provided any counseling or re-training for another position. He goes on to state that he began to accrue a series of unauthorized absences, that he was offered a way to leave the Army and that he was willing to sign anything that was placed in front of him. He believes that the "injury I received in Vietnam was directly related to my failure to adjust to normal Army life when returned to the continental United States." He contends that upon proper counseling and/or transfer to a straight infantry unit he could have corrected his behavior. He states that he served honorably in the Vietnam conflict, that he earned several ribbons, that he is proud of his military service and would like to proudly display the ribbons that he earned. Since his discharge, he has married and raised a family, worked for a welding company for 25 years and has maintained a clean civilian record. In support of his application, he submits a letter of explanation, dated 20 December 2002; a letter, dated 15 July 2002, from the National Personnel Records Center; service medical records; and a personal account of his medical history.

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

The applicant enlisted on 12 November 1968 for a period of 3 years. He served as a parachute rigger and was honorably discharged on 29 January 1970 for immediate reenlistment. He reenlisted on 30 January 1970 for a period of
3 years. He served as a general vehicle repairman in Vietnam from 22 June 1970 through 3 December 1970 and was honorably discharged on 23 June 1971 for immediate reenlistment. On 24 June 1971, the applicant reenlisted for a period of 6 years. He served as a parachute rigger in Vietnam from 21 August 1971 through 4 October 1971.

On 20 October 1972, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 11 October 1972 to 15 October 1972. His punishment consisted of a forfeiture of pay (suspended for 90 days).

On 9 August 1973, the applicant was convicted by a special court-martial of being AWOL from 20 April 1973 to 28 April 1973. He was sentenced to be reduced to specialist four. On 10 September 1973, the convening authority approved the sentence.

On 18 December 1974, nonjudicial punishment was imposed against the applicant for being AWOL from 9 December 1974 to 11 December 1974. His punishment consisted of a forfeiture of pay and extra duty.

On 23 January 1975, nonjudicial punishment was imposed against the applicant for being AWOL from 25 December 1974 to 20 January 1975. His punishment consisted of a reduction to private first class (suspended for 90 days), a forfeiture of pay, and extra duty. On 3 April 1975, the suspension of the punishment of reduction to private first class was vacated.

On 13 March 1975, a bar to reenlistment was imposed against the applicant.

On 22 May 1975, the applicant was convicted by a special court-martial of being AWOL from 3 April 1975 to 9 May 1975. He was sentenced to be reduced to private first class (although there is no evidence that the applicant had been re-promoted to specialist four) and to forfeit $100 pay per month for 3 months. On 28 May 1975, the convening authority approved the sentence.

On 19 December 1975, nonjudicial punishment was imposed against the applicant for being AWOL from 1 December 1975 to 3 December 1975. His punishment consisted of a reduction to private (suspended for 90 days), a forfeiture of pay, and extra duty. On 29 December 1975, the suspension of the punishment of reduction to private was vacated.

The applicant went AWOL on 23 December 1975 and was returned to military control on 7 April 1976. Charges were preferred against the applicant on 13 April 1976 for the AWOL period.

On 14 April 1976, 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. He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of the Veterans Affairs and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he may encounter substantial prejudice in civilian life because of an undesirable discharge. Additionally, he elected not to submit a statement in his own behalf.

On 15 April 1976, the applicant underwent a separation physical examination and was found qualified for separation with a physical profile of 113111. Item
8 (Statement of Examinee's Present Health and Medications Currently Used) on the applicant's Standard Form 93 (Report of Medical History) shows he entered the entry, "Good." The applicant also indicated on this form that he could perform but that it sometimes hurts. A recommendation for an orthopedic consultation was made on 15 April 1976. The applicant was evaluated by the orthopedic clinic on 15 April 1976 and was found fit for discharge with a permanent profile of "3" under lower extremities.

The intermediate commanders recommended that the applicant’s request for discharge be approved and that he be furnished an undesirable discharge.

On 5 May 1976, the separation authority approved the applicant’s request for discharge and directed that he be issued an undesirable discharge.

Accordingly, the applicant was discharged with an undesirable discharge on
20 May 1976 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served 6 years, 8 months and 29 days of total active service and had 280 days of lost time due to AWOL.

There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board 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. At the time, an undesirable discharge was normally considered appropriate.

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 (emphasis added), 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.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is 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 the soldier’s 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. 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.

2. Medical evidence of record shows the applicant was found qualified for separation on 15 April 1976 with a physical profile of 113111. In accordance with the governing regulation, numerical designator "3" indicates that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. However, the Board also notes that the applicant indicated that his present health was "Good" at the time of his separation physical examination and that he could perform his duties although it hurt sometimes.

3. The Board considered the applicant's post service achievements and conduct. However, good post service conduct alone is not a basis for upgrading his discharge.

4. The Board reviewed the applicant’s record of service which included four nonjudicial punishments, two special court-martial convictions, and 280 days of lost time and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. The Board also determined that his service was not satisfactory. Therefore, the applicant is not entitled to an honorable discharge or a general discharge.

5. 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. He had an opportunity to submit a statement in which he could have voiced his reason for AWOL and he failed to do so.

6. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

7. 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

KAN____ LE______ JTM_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084607
SUFFIX
RECON
DATE BOARDED	20031002
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19760520
DISCHARGE AUTHORITY	AR 635-200 Chapter 10
DISCHARGE REASON	For the good of the service
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.