MEMORANDUM OF CONSIDERATION


         IN THE CASE OF
        

         BOARD DATE: 22 May 2003
         DOCKET NUMBER: AR2003087279


         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr..		Chairperson
Mr. Stanley Kelley .		Member
Ms. Gail J. Wire		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)

APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his military records by upgrading his undesirable discharge (UD).

COUNSEL CONTENDS: In effect, that the applicant is requesting reconsideration of the Board’s original denial of his application for the following reasons: he was unaware of any time limitations; he completed a tour in the Republic of Vietnam (RVN) and received the Vietnam Service Medal (VSM) and campaign medals; and he believes he was awarded the Bronze Star Medal (BSM).

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2002076250) on
17 December 2002. Counsel’s contentions in support of the applicant’s reconsideration request are new argument that requires the Board’s consideration.

The applicant’s military record shows that he was initially inducted into the Army of the United States on 24 August 1965, and that he served on active duty for
2 years until being honorably separated on 23 August 1967. During this tour of active duty, he was trained and served in military occupational specialty (MOS) 63H (Automobile Repairman), and he attained the rank of specialist four (SP4).

The applicant’s Enlisted Qualification Record for his first enlistment indicates that during this first period of active duty service, he completed an overseas tour of duty in Korea, and he earned the National Defense Service Medal (NDSM).

On 24 July 1969, the applicant reenlisted in the Regular Army and reentered active duty. On 24 March 1970, after completing 8 months and 1 day of active military service on this enlistment, he was honorably discharged in order to immediately reenlist. The separation document (DD Form 214) issued to him on the date of his separation from this period of active duty service indicates that up to that date he had earned the NDSM, Armed Forces Expeditionary Medal (AFEM), and the Army Good Conduct Medal (AGCM). On 25 March 1970, he reenlisted for six years.

The applicant’s DA Form 20 that was prepared on 29 July 1969, shortly after his first reenlistment, shows that he was promoted to the rank of sergeant (SGT) on 15 December 1970, and that he was reduced to corporal (CPL) as a result of his acceptance of nonjudicial punishment (NJP) on 20 August 1971. It also shows that he completed a combat tour in the RVN, and that he earned the following awards: NDSM; AFEM; AGCM; and VSM.

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Although not entered on the applicant’s DA Form 20, his Military Personnel Records Jacket (MPRJ) contains a copy of General Orders Number 2226, dated 15 March 1971, issued by Headquarters, 101^st Airborne Division, RVN. These orders awarded him the BSM for meritorious service from May 1970 to March 1971. No other acts of valor, significant achievement, or service warranting special recognition for this period of enlistment are recorded in his military records.

The applicant’s record for his last period of active duty service contains an extensive disciplinary history that includes his being absent without leave (AWOL) on three separate occasions totaling 328 days. It also includes his acceptance of NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), which resulted in his reduction from SGT to corporal .

The specific facts and circumstances pertaining to the applicant’s UD are not on file in his record. However, his record does include a properly constituted
DD Form 214 that he authenticated with his signature on the date of his separation. This document contains the authority and reason for his discharge, and confirms that he was separated in lieu of court-martial and received an UD under the provisions of chapter 10, Army Regulation 635-200.

The DD Form 214 also confirms that the applicant completed 1 year, 6 months, and 19 days of creditable active military service on his last enlistment, a total of
4 years, 2 months, and 20 days of creditable active military service, and he accrued 328 days of time lost due to AWOL. The DD Form 214 further indicates that during this last period of active duty service, the applicant earned the VSM and Vietnam Campaign Medal. The BSM is not included in this list of earned awards.

There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge within its 15 year statute of limitations. However, the applicant did apply and this Board considered his request for an upgrade to his discharge on 17 December 2002. During this review, the Board found that the applicant had failed to submit relevant evidence to demonstrate the existence of probable error or injustice, and it accordingly denied his request.

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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 Board notes the request of counsel that the applicant’s case be reconsidered based on his overall record of service, to include his combat service in the RVN and his earned BSM. However, after carefully considering these factors, the Board found they were not sufficiently meritorious to warrant a change to the Board’s original decision in this case.

2. Although the applicant’s record is void of the specific facts and circumstances concerning events that led to his UD, the Board notes that his record contains a properly constituted DD Form 214 that he authenticated with his signature. This document identifies the reason and characterization of the discharge and the Board presumes government regularity in the discharge process.

3. The evidence of record confirms that during his last enlistment, the applicant went AWOL on three separate occasions totaling 328 days of time lost. It further verifies that he was administratively discharged in lieu or trial by court-martial under the provisions of chapter 10, AR 635-200. In connection with such a discharge, he was charged with the commission of an offense(s) punishable under the UCMJ with a punitive discharge. Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial. In doing so, he admitted guilt to the stipulated offense(s).

4. In the absence of information to the contrary, 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. Notwithstanding his combat service that resulted in his receiving the BSM, the Board finds that his discharge accurately reflects his overall record of service for the period of enlistment under review considering his extensive disciplinary history.

5. In the opinion of the Board, the overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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.

NOTE: Officials of the ARBA Support Division, St. Louis are requested to administratively correct the applicant’s 11 September 1972 separation document by amending Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) to list all the following awards earned by the applicant during his various periods of active duty service: National Defense Service Medal; Armed Forces Expeditionary Medal; Army Good Conduct Medal; Bronze Star Medal; Vietnam Service Medal with 2 bronze service stars; Republic of Vietnam Campaign Medal with 60 Device; Republic of Vietnam Gallantry Cross Unit Citation with Palm; and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

GW___ __SK___ __RO               DENY APPLICATION




         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2003087279
SUFFIX
RECON	AR2002076250
DATE BOARDED	2003/05/22
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1972/09/11
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court-Martial
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.