MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 August 2003
         DOCKET NUMBER: AR2003087783

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Roger W. Able		Member
Ms. Regan K. Smith		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 discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES: That due to his flawless 11 years of service, he feels he should have received at least a general discharge under honorable conditions. He was told that his discharge would be upgraded within 3 weeks after his discharge. He served in Vietnam, took part in five major battles, and was awarded the Bronze Star Medal. He had just been promoted to Sergeant First Class (SFC), E-7. He was serving an unaccompanied tour in Korea and had less that 2 months of duty left when he received a letter from his wife saying she had filed for divorce. He was given an emergency leave but was unable to save his marriage. He was assigned to Fort Hood, TX where he turned to alcohol and could no longer function as a leader. He walked away. After some years rebuilding his life, he turned himself in. Now it is important to him to have his discharge upgraded to honorable.

As supporting evidence, the applicant provides his DD Form 214 (Report of Separation for Active Duty) for the period ending 26 February 1979 and 3 character witness statements (dated 3 February 2003, 4 February 2003, and one undated).

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

He enlisted in the Regular Army on 12 August 1965. He was honorably discharged on 8 October 1967 for the purpose of immediately reenlisting on 9 October 1967. He served in Vietnam as a field artillery assistant gunner from on or about 9 December 1967 to on or about 8 December 1968 and was awarded the Bronze Star Medal. He was honorably discharged on 11 July 1971 for the purpose of immediately reenlisting on 12 July 1971. He was honorably discharged on 20 September 1973 for the purpose of immediately reenlisting on 21 September 1973.

The applicant was assigned to Korea on or about 23 August 1974. He was promoted to SFC on 11 September 1974. He departed Korea on 1 August 1975 and was assigned to Fort Hood, TX.

On 1 February 1979, court-martial charges were preferred against the applicant charging him with being absent in desertion from on or about 18 August 1976 to on or about 30 January 1979.

On 1 February 1979, the applicant completed a separation physical examination and was found qualified for separation.

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On 1 February 1979, the applicant completed a mental status evaluation. He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

On 2 February 1979, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits. He submitted a statement in his own behalf, wherein he requested a more favorable discharge than UOTHC. He noted that he had one year of combat in Vietnam where he was awarded the Bronze Star Medal. He noted that since Vietnam he was awarded the Army Commendation Medal and three awards of the Army Good Conduct Medal.

The immediate commander's endorsement noted that the applicant's reason for departing was personal problems.

On 16 February 1979, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

On 26 February 1979, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial. He had completed 11 years, 1 month, and 2 days of creditable active service and had 703 days of lost time.

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 a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. A discharge UOTHC is normally considered appropriate.

Army Regulation 635-200 states, in pertinent part, that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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. An

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honorable discharge may be furnished when disqualifying entries in the soldier’s military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. A general discharge is a separation from the Army under honorable conditions. It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The type of discharge and character of service will be determined solely by the military record during the current enlistment from which the soldier is being separated.

The U. S. 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 requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

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. There is no indication that the request was made under coercion or duress.

3. The Board empathizes with the applicant's personal problems but notes that, as a senior noncommissioned officer, he should have been aware that there were more acceptable ways to attempt to resolve his problems (i.e., chaplain, other counseling, etc.).

4. The Board is aware of the applicant's prior good service; however, the type of discharge and character of service is determined solely by the military record during the current enlistment from which he was being separated. His prior good service was recognized with several DD Forms 214 from his earlier periods of service. The Board is cognizant of his good post-service conduct; however, considering the length of his unauthorized absence, that is insufficient justification to upgrade his discharge to either fully honorable or general under honorable conditions.

5. 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

__jns___ __rwa___ __rks___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087783
SUFFIX
RECON
DATE BOARDED	20030821
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19790226
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	110.00
2.
3.
4.
5.
6.