MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 25 September 2003
                  DOCKET NUMBER: AR2003089362

         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:

Mr. John N. Slone		Chairperson
Ms. Regan K. Smith		Member
Ms. Linda D. Simmons		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 a general discharge.

APPLICANT STATES: That he was 18 years of age when he was assigned to Vietnam as a combat engineer and that he served his country with honor and without error. He goes on to state that he made an error in judgment; however, the punishment he received did not fit the crime. He further states that he volunteered to go to Vietnam and the things he witnessed were very stressful and he has taken steps to become clean from all drugs and alcohol. He also states that it took him many years to discover that he was discharged under other than honorable conditions and while he did use drugs, he was incompetent to make decisions because of the post-traumatic stress he was experiencing. It was only after he began treatment that he realized that his illness assisted in his poor judgment. In support of his application he submits certificates of achievement for achievement in the specialized inpatient post-traumatic stress disorder unit in 2001 and the substance abuse rehabilitation program in 2000.

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

He was born on 21 June 1952 and enlisted in the Regular Army in Raleigh, North Carolina, on 8 October 1969, for a period of 3 years and training as a combat engineer. He successfully completed his basic, advanced and airborne training and was transferred to Germany on 3 May 1970. He was advanced to the pay grade of E-3 on 1 August 1970 and was reclassified to a mechanical maintenance apprentice military occupational specialty (MOS).

On 21 August 1970, he reenlisted for a period of 3 years and assignment to Vietnam. He departed Germany on 19 October 1970 and was transferred to Vietnam on 18 November 1970, where he was assigned to Company D, 173^rd Airborne Brigade, for duty as a mechanical maintenance apprentice. He was advanced to the pay grade of E-4 on 10 March 1971.

On 1 May 1971, nonjudicial punishment (NJP) was imposed against the applicant for sleeping on his guard post. His punishment consisted of a reduction to the pay grade of E-3 (suspended for 3 months), a forfeiture of pay and extra duty.

On 31 May 1971, charges were preferred against the applicant for the wrongful possession of heroin, for being absent without leave (AWOL) from 2 June to 3 June 1971 and for being apprehended in an off-limits area.

The facts and circumstances surrounding the applicant’s discharge are not present in the available records. However, his records do contain a duly constituted report of separation (DD Form 214) signed by the applicant, which shows that he was discharged at Fort Lewis, Washington, on 24 July 1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 9 months and 17 days of total active service and served 8 months and 6 days in Vietnam.

There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board (ADRB) 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 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 (felony conviction), 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. In the absence of evidence to the contrary, it must be presumed that 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 and supporting documents have been considered by the Board and the Board commends him for his efforts. However, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service during such a short period of time.



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

___js ___ __rks____ __lds____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003089362
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/09/25
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1971/07/24
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00
2.
3.
4.
5.
6.