MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 31 July 2003
         DOCKET NUMBER: AR2003086797

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Gail J. Wire		Chairperson
Ms. Karen A. Heinz		Member
Mr. Robert Duecaster		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.

APPLICANT STATES: That his discharge should be upgraded because he served his country well during the war in Vietnam and because the President gave amnesty to all veterans.

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

He enlisted with parental consent on 21 December 1970 for a period of 2 years. He completed his basic combat training at Fort Polk, Louisiana, and was transferred to Fort Carson, Colorado, to undergo training as a mechanical maintenance helper. He remained at Fort Carson until he was transferred to Vietnam on 2 November 1971.

On 28 April 1972, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty. His punishment consisted of a forfeiture of pay and extra duty.

He departed Vietnam on 21 June 1972 and was transferred to Fort Lewis, Washington.

On 23 August 1972, NJP was imposed against him for being absent without leave (AWOL) from 11 August to 14 August 1972. His punishment consisted of a reduction to the pay grade of E-2.

On 13 September 1972, NJP was imposed against him for being AWOL from 8 September to 11 September 1972. His punishment consisted of a forfeiture of pay.

On 11 October 1972, NJP was imposed against him for being AWOL from 25 September to 26 September 1972, for disobeying a lawful order from his first sergeant and for being derelict in the performance of his duties. His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay.

The applicant's records also show that he was AWOL from 2 October to 5 October 1972 and on 13 October 1972, he again went AWOL and remained absent until he was apprehended by Federal Bureau of Investigation (FBI) agents on 8 March 1973. He was returned to military control at Fort Sill, Oklahoma, where charges were preferred against him for the AWOL offenses.

On 20 March 1973, 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, in lieu of trial by court-martial. In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.

The appropriate authority approved his request and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 5 April 1973, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 10 months and 15 days of total active service and had 161 days of lost time due to AWOL and confinement.

He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 1 September 1981 and was granted a personal appearance before the travel panel in San Francisco, California, on 1 February 1982. After hearing testimony from the applicant and his counsel, the board determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his application.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 charges have been preferred, submit a voluntary request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions was at that time and is still normally 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. 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.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the length of his absences during a short period of time.

4. The applicant’s contentions have been considered by the Board. However, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service. While the applicant did serve seven months in Vietnam, that in itself is not sufficiently mitigating to warrant an upgrade of his discharge.

5. 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.

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

___rd ___ __kh____ __gw____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086797
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/07/31
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1973/04/05
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 144.7000	689/A70.00
2.
3.
4.
5.
6.