MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 July 2003
         DOCKET NUMBER: AR2003086526

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. John P. Infante		Member
Ms. Yolanda Maldonado		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 be upgraded.

APPLICANT STATES: That he served honorably from July 1968 to March 1968 (i.e., 1969). He stated that he reenlisted and served in Vietnam from 1969 to June 1970. He claimed that when he returned stateside, civilians horribly treated him. He stated that he went AWOL [absent without leave] rather than return to Vietnam. He claimed that he has been a good citizen since that time. The applicant submitted a letter from an employer and a Criminal History Consent Form from the Cherokee County Sheriff's Office.

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

The applicant enlisted in the Regular Army on 11 July 1968. He completed the required training and was assigned to Fort Riley, Kansas as a rifleman. He was honorably discharged on 20 March 1969 for immediate reenlistment.

On 27 May 1969, the applicant was convicted by a summary court-martial of being AWOL from 19 April 1969 to 25 April 1969. He was sentenced to reduction to the grade of private, pay grade E-1; to restriction to the company area for 45 days; and to forfeit the sum of $50.00 for 1 month. The portion of the sentence adjudging forfeiture of $50.00 for 1 month was suspended for 45 days, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence was remitted without further action.

The applicant was assigned to Vietnam on 12 September 1969. While in Vietnam, he was punished under Article 15, Uniform Code of Military Justice (UCMJ) for stealing a pair of M-3 Binoculars valued at $154.00 and the property of the United States Government. His punishment consisted of a forfeiture of $82.00 per month for 2 months.

Department of the Army, 1st Cavalry Division (Airmobile) Special Orders Number 233 dated 21 August 1970 reassigned the applicant to the Overseas Replacement Station at Fort Dix, New Jersey on 12 September 1970 for further assignment to the Headquarters and Headquarters Detachment, 21st Adjutant General Replacement Battalion in Germany.

Records show the applicant departed AWOL from the 90th Replacement Station located at Fort Dix, New Jersey on 12 September 1970. He was apprehended by civilian authorities in Calhoun, Georgia and was returned to military control on 19 June 1973. He was reassigned to the U.S. Personnel Control Facility at Fort Campbell, Kentucky.

On 24 July 1973, charges were preferred against the applicant for being AWOL from 12 September 1970 to 18 June 1973.

On 24 July 1973, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if an Undesirable Discharge Certificate was issued. The applicant submitted statements in his own behalf. In essence, the applicant stated that he wanted a Chapter 10 discharge for the good of the Army and for himself. He stated that he had no intentions for staying in the Army because his wife and baby needed him at home more than anyone else.

The separation authority approved the applicant’s request for discharge for the good of the service on 1 August 1973 and directed issuance of an undesirable discharge.

Accordingly, the applicant was discharged on 7 August 1973 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had 8 months and 10 days of creditable active service during this enlistment. The applicant completed 2 years, 3 months, and 14 days of total active military service with 1,018 days of lost time due to AWOL.

There is no indication that 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. An undesirable discharge is 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, 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, also 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. 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.

3. There is no indication of procedural errors which would tend to jeopardize his rights or that his request for a chapter 10 discharge was made under coercion or duress.

4. The Board notes the applicant's honorable service from July 1968 to March 1969. However, his records show that he was convicted by a summary court-martial, received an Article 15, and was AWOL for over 1,000 days (it appears he departed AWOL to avoid going to Germany, not to avoid returning to Vietnam) after his reenlistment. The Board has determined that these offenses outweigh his prior honorable service.

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

6. Based on the foregoing, the Board has determined that there is no apparent error, injustice or inequity on which to base recharacterization of the applicant's discharge.

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

________ ________ ________ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086526
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030724
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19730807
DISCHARGE AUTHORITY	AR 635-200, chapter 10
DISCHARGE REASON	For the Good of the service
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	144.0000
2.
3.
4.
5.
6.