MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 November 2003
         DOCKET NUMBER: AR2003086128

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Gail J. Wire		Member
Mr. Antonio Uribe		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.

APPLICANT STATES: In effect, that he does not believe his service warrants this type of discharge. He believes that clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a UD. Under current standards, he would not have received this type of discharge. His average conduct and efficiency ratings and his behavior and proficiency marks were good. He received awards and decorations; he had combat service; his record of promotions shows he was generally a good soldier; and he has been a good citizen since being separated. His nonjudicial punishments (NJP’s) were for isolated or minor offenses. His ability to serve was also impaired by marital and family problems. The applicant submits in support of his request letters written by his stepdaughter and daughter; three letters from former superiors; a letter from an instructor at Clear Creek Baptist Bible College; and a letter from his wife. The applicant’s wife states that her husband was unable to adjust to a “peacetime Army” and that, after he served in Vietnam, his military service became a private battle. All letters indicate the applicant is a kind, caring person; he is of excellent character; and he is dependable, with demonstrated exceptional work ethics. The applicant also submits certificates for completion of several vocational education courses, a High School Equivalency Certificate, and a certificate in appreciation for involvement in community service.

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

Prior to the period of service under review, the applicant served honorably in the Regular Army (RA) from 7 June 1968-8 July 1970. He was separated for the purpose of immediate reenlistment and issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). He served in Korea from 14 March 1969 - 10 July 1970.

On 9 July 1970, the applicant reenlisted in the RA for a period of 6 years in military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic) and in pay grade E-5. He served in Vietnam from 21 August 1970 - 19 August 1971.

On 5 December 1972, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from his unit from 3 October - 16 November 1972. He was sentenced to reduction from pay grade E-5 to pay grade E-4 (suspended 100 days), forfeiture of $25 pay per month for 3 months, and to perform 45 days of extra duty.

On 9 July 1973, NJP under Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for being absent from his appointed place of duty on 8 July 1973. His punishment included 7 days of extra duty and restriction. On 11 July 1973, the applicant appealed the NJP, he stated that the NJP would impose a hardship; that he had a part time job to keep his bills paid; that his wife had lost a baby just 2 months prior and that he was experiencing marital problems. On 17 July 1973, the appeal was denied.

On 9 January 1975, NJP was imposed against the applicant for being AWOL from his unit on 6 January 1975. His punishment included the forfeiture of $125 pay per month for 1 month and 14 days of extra duty and restriction. On 24 March 1975, NJP was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed on 21 February 1975. His punishment included the forfeiture of $250 pay per month for 2 months (suspended for 3 months) 45 days of extra duty and restriction, and reduction from pay grade E-5 to pay grade E-4. On 22 May 1975, NJP was imposed against him for failure to perform extra duty on 16 May 1975. His punishment included reduction to pay grade E-3.

On 16 July 1975, NJP was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed on 3 July 1975. His punishment included 14 days of extra duty, reduction to pay grade E-2, the forfeiture of $85 pay and restriction (all three suspended for 60 days). On 18 July 1975, NJP was imposed against him for failure to perform the duties of the charge of quarters' (CQ) runner on 3 July 1975. His punishment included 14 days of extra duty.

The evidence available indicates the applicant was AWOL 15-17 July 1972 and from 4-10 March 1975. There is no evidence that he was punished for these offenses.

On 26 August 1975, the applicant authenticated a statement indicating that he had a separation medical examination more than 3 working days prior and that there had been no change in his medical condition.

The applicant’s record is void of the facts and circumstances surrounding the discharge process. However, the record does contain a properly constituted
DD Form 214 that he signed at the time of separation. The applicant’s DD Form 214 indicates that he was separated on 26 August 1976, under the provisions of chapter 13, Army Regulation 635-200, for unfitness, involvement in frequent incidents of a discreditable nature with civil or military authorities. He was separated with a UD. He had completed 4 years, 11 months and 23 days of creditable active military service under the enlistment under review and he had 56 days of lost time, due to being AWOL. He had also completed 2 years, 1 month and 1 day on a prior period of enlistment.

The applicant's DD Form 214 also shows that he was awarded the National Defense Service Medal; Armed Forces Expeditionary Medal (Korea); Vietnam
Service Medal with 3 bronze service stars; Vietnam Campaign Medal and the Marksman Marksmanship Badge (Rifle).
The available evidence does not show the applicant has ever applied to the Army Discharge Review Board for an upgrade of his discharge.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unfitness and provides, in pertinent part, that commanders will separate a member under this chapter when the member is involved in frequent incidents of a discreditable nature with civil or military authorities. A UD was generally considered appropriate.

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. In the absence of the facts and circumstances surrounding the discharge and evidence of an error or injustice in the discharge process, the Board must presume regularity in the discharge process.

3. The Board has taken into consideration the applicant’s contentions and concludes that, even if he had personal problems, there were many legitimate avenues he could have pursued and received help in lieu of committing the offenses for which he was discharged. The applicant was a noncommissioned officer and he understood the consequences of continuously being involved in misconduct.

4. The applicant's misconduct did not involve isolated offenses and given the same circumstances under current standards, he could receive the same type of discharge.

5. The Board congratulates the applicant on his achievements since departing the Army. However, the Board does not grant relief solely on post service conduct.

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

__fne___ __gjw___ __au____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086128
SUFFIX
RECON
DATE BOARDED	20031104
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19750826
DISCHARGE AUTHORITY	AR635-200, Chap 13
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5000
2.
3.
4.
5.
6.