MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 May 2003
         DOCKET NUMBER: AR2003085465

         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. Melvin H. Meyer		Chairperson
Ms. Deborah S. Jacobs		Member
Mr. Jose A. Martinez		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 Honorable.

APPLICANT STATES: In effect, that he was told by the Department of Veteran's Affairs (VA) that it would be changed back in the 1970s.

The applicant submitted nothing in support of his application.

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

The applicant was inducted in the Army of the United States on 12 April 1968. Following completion of basic combat training at Fort Knox, Kentucky, he was sent to Fort Rucker, Alabama, to undergo advanced individual training. Upon completion of all training, he was awarded the primary military occupational specialty (MOS) 67A, Aircraft Maintenance Crewman.

On 4 September 1968, he departed Fort Rucker en route to the US Army Overseas Replacement Station, Oakland, California, for further assignment to the US Army Vietnam Transient Detachment with an availability date of 28 September 1968. The applicant failed to report as ordered. He was returned to military control at the US Army Armor Center, Fort Knox, Kentucky, on 27 August 1969.

On 1 October 1969, the applicant received a special court-martial. He was found guilty of being AWOL from 28 September 1968 until 27 August 1969. The applicant was sentenced to be confined at hard labor for five months, to forfeit $50.00 pay per month for five months, and to be reduced to the rank and pay grade of private, E-1. The sentence was approved and ordered executed on 29 October 1969.

Effective 2 December 1969, the unexecuted portion of the sentence to confinement at hard labor for five months was suspended for five months by Special Court-Martial Orders 1986, paragraph 2, published by the US Army Armor Center on 1 December 1969. The applicant departed Fort Knox and reported to the US Army Personnel Center, Oakland, California, to be processed for shipment to the Republic of Vietnam.

The applicant arrived in the Republic of Vietnam on 6 December 1969 and was initially assigned to the 361st Aviation Company (Escort). On 20 December 1969, he was reassigned to the 665th Transportation Detachment for duty as a Helicopter Mechanic Helper, duty MOS 67A. On 23 February 1970, he was

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returned to the 361st Aviation Company (Escort) for assignment and on-the-job training and duty as an Aircraft Ammunition Handler, MOS 55A.

On 16 January 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty, guard mount and guard duty on 11 January 1970, and for willfully failing to obey a lawful order from his superior noncommissioned officer on 16 January 1970. The punishment imposed consisted of a forfeiture of $61.00 for two months and thirty days extra duty. The applicant did not appeal the punishment.

There is evidence that the applicant accepted NJP under the provisions of Article 15, UCMJ, on 9 February 1970. A copy of the Article 15 is not on file in the applicant's service personnel records; but, a copy of Unit Orders Number 3, paragraph 2, published by the 361st Aviation Company (Escort) dated 16 February 1970, ordering the applicant to forfeit $85.00 for misconduct, was available for the Board's review.

On 10 February 1970, the applicant's commander initiated action to bar him from reenlistment. The commander's recommendation was based on his assessment that the applicant was a substandard soldier who had a record of habitual misconduct. The applicant had been the subject of a court-martial and two Article 15s. Counseling, in the commander's judgment, had been to no avail. The bar to reenlistment was approved on 10 March 1970.

On 16 July 1970, he accepted NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty, guard mount on 15 July 1970. The punishment imposed consisted of a forfeiture of $30.00 per month for two months, 14 days extra duty, and a reduction to the rank and pay grade, Private, E-2, suspended for two months. The applicant did not appeal the punishment.

The applicant was promoted to the rank and pay grade, Specialist 4, E-4, on 22 October 1970 in the MOS 55B. This would be the highest rank and pay grade that the applicant would hold during his Army service. The record contains no documented acts of valor, achievement, or service warranting special recognition.

The applicant completed his tour of duty in the Republic of Vietnam on 11 November 1970. He was returned to the United States and was assigned to Headquarters and Headquarters Company, 21st Aviation Battalion, Fort Sill, Oklahoma, effective 24 January 1971.

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The applicant departed absent without leave from his unit, the 21st Aviation Battalion, on 4 May 1971. He was dropped from the rolls of the organization, effective 2 June 1971.

The applicant was apprehended by civilian authorities on 5 August 1971 in Clarksburg, West Virginia, and was returned to military control on the same date. He was transported to the US Army Armor Center, Fort Knox, and was assigned to the US Army Special Processing Company, Personnel Control Facility, for processing.

The applicant departed absent without leave from the US Army Special Processing Company, on 7 September 1971, and remained absent until 5 February 1972, when civilian authorities in Clarksburg, West Virginia, apprehended him.

The evidence shows that on 18 February 1972, court-martial charges were brought against the applicant for two specifications of absence without leave. These periods were from 4 May 1971 until 5 August 1971 and from 7 September 1971 until 5 February 1972 when he was returned to military control at Fort Knox.

The evidence of record shows that on 24 February 1972, the applicant consulted with counsel and submitted a request for discharge from the service. The applicant submitted a statement in his behalf. In this statement, the applicant said that he was drafted into the Army, and ever since, he had been messed up. At first, he thought that he would like being in the military, but he just couldn't adjust, and he also had a lot of family problems. He went on to say that he had spent a term in Vietnam and did not think he could do the Army any more good. Each time he absented himself without leave, he went home because his mother needed him there. She is unable to work and he would very much like to be there when she needs him.

In his request, the applicant acknowledged that he had not been subjected to coercion with respect to his request for discharge and had been advised of the implication attached to it. He stated that he understood that if discharged under other than honorable conditions and furnished an undesirable discharge, that he understood he shall be deprived of many or all Army benefits and 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 unanimously recommended approval of his request and recommended that he be discharged with an undesirable discharge.

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The separation authority, a major general, approved the applicant's discharge on
21 March 1972 and directed that he be discharged with an undesirable discharge.

The applicant was discharged on 29 March 1972 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 conditions other than honorable and he was provided an undesirable discharge certificate. On the date of his discharge, he had 2 years, 1 month, and 10 days active Federal service with 430 days lost due to absence without leave and confinement prior to the normal expiration of his term of service (ETS) and 246 days lost subsequent to his normal ETS.

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.

The US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits a request for a change in the discharge or its characterization. Changes may be warranted if the Board determines that the characterization of service, or the reason for discharge, or both, were improper or inequitable.

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. A discharge under other than honorable conditions is normally considered appropriate.

Paragraph 3-7, of the same regulation, 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, 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.

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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 offenses 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, especially considering his less than distinguished record of service. 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. Finally, the Board considered the applicant’s entire record of service. There is no record or documented evidence of acts of valor, achievement, or service that would warrant special recognition.

7. 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 honorable discharge.

8. 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.

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9. 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

__mhm___ __dsj___ __jam___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085465
SUFFIX
RECON
DATE BOARDED	20030520
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19720329
DISCHARGE AUTHORITY	AR 635-200, Chapter 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.7000
3.
4.
5.
6.