MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 September 2003
         DOCKET NUMBER: AR2003088406

         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. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Margaret V. Thompson		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 to an honorable. He also requests that his reason for discharge be changed to show that he was discharged for the convenience of the government; that his reentry (RE) code be changed to RE-1; and that his separation program number (SPN) be changed to correspond with his reason for discharge.

APPLICANT STATES: That he is a Vietnam Veteran with an honorable discharge. He states that he reenlisted in the Army to go to Vietnam and that he spent 1 year in Vietnam before returning stateside to Fort Hood, Texas, with a perfect record of conduct and efficiency. He states that he was not provided time to readjust when he returned from Vietnam and that he began to experience problems that continued until he was discharged with an undesirable discharge. He continues by stating that he is now a 51-year old grandfather and he believes that he served his country well and that he went beyond his obligation when he reenlisted to go to Vietnam. He concludes by stating that he fulfilled his service obligation in Vietnam and that he just could not readjust to regular Army life.

COUNSEL CONTENDS: That the applicant is a combat Veteran and that all evidence and statements be carefully considered in addition his application. Counsel requests that the Board resolve any doubt in favor of the applicant.

EVIDENCE OF RECORD: Incorporated herein by reference are military records, which show that on 20 January 1970, he enlisted in the Army at Fort Knox, Kentucky. He successfully completed his training as a clerk typist. On 20 April 1970, he was promoted to the pay grade of E-2 and to the pay grade of E-3 on 6 July 1970.

He completed 8 months of total active service and he reenlisted in the Army on 23 September 1970. On 11 October 1970, the applicant was transferred to Vietnam and he returned to the Continental United States on 1 December 1971.

On 22 January 1971, he was promoted to the pay grade of E-4.

The applicant was convicted by a special court-martial on 3 October 1971, of being absent without leave (AWOL) from 10 April until 2 May 1972 and 8 May 1972 until 21 August 1972. He was sentenced to confinement at hard labor for 2 months, a forfeiture of pay and a reduction to the pay grade of E-1.

The applicant was notified that charges were pending against him for being AWOL from 6 January 1973 until 2 May 1973 and from 7 May 1973 until 12 August 1973. He acknowledged receipt of the notification and after consulting with counsel, he submitted a request for 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 appropriate authority approved the request for discharge on 7 September 1973. Accordingly, on 17 September 1973, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu to trial by court-martial. He had completed 2 years, 5 months and 19 days of total active service and he had 435 days of lost time due to AWOL and confinement. He was assigned an RE-3B code and a 246 (for the good of the service) SPN. He was furnished an Undesirable Discharge Certificate.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 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. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200.

RE-3B indicates that a person had lost time during his last enlistment.

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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3. Additionally, he was separated and assigned a reentry code in accordance with regulations then in effect and the SPN that he was assigned corresponds with his reason and authority for discharge.

4. The Board has noted the contentions made by the applicant and his counsel. However, the applicant was convicted by a special court-martial of two incidents of being AWOL. He continued to go AWOL, which result in his accruing 435 days of lost time.

5. His request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid trial by a court-martial and the punitive discharge that he might have received. Although he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

6. 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.

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

__mvt ___ __mm___ ___rjw __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003088406
SUFFIX
RECON
DATE BOARDED	2003/09/30
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19731117
DISCHARGE AUTHORITY	AR 635-200/CH 10
DISCHARGE REASON	689
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 708	144.7100
2.
3.
4.
5.
6.