MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 15 July 2003
         DOCKET NUMBER: AR2003089608

         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. Fred N. Eichorn		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Eric N. Anderson		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: In effect, that his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES: In effect, at the time of his discharge, he was told that he would receive a GD. He claims that he did not receive a separation document (DD Form 214) in 1972, but did get a letter indicating that his discharge had been approved. He states that he believes he deserves an upgrade of his discharge based on his overall record of service, which includes combat service in the Republic of Vietnam (RVN).

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

He initially entered active duty on 20 July 1965. He was trained in and awarded military occupational specialty (MOS) 11E (Armor Crewman). On 25 October 1967, while serving in Europe, he was honorably discharged for the purpose of immediate reenlistment. On 26 October 1967, he reenlisted for six years.

The applicant’s Enlisted Qualification Record (DA Form 20) shows that during his tenure on active duty, the applicant served in the RVN for 10 months between
9 February 1970 and 23 November 1971. It also shows that during his tenure on active duty he earned the following awards: National Defense Service Medal (NDSM); Vietnam Service Meal (VSM) with 1 bronze service star; Combat Infantryman Badge (CIB); Army Good Conduct Medal (AGCM); Purple Heart (PH); Air Medal (AM); and Republic of Vietnam Campaign Medal with 60 Device.

The applicant’s DA Form 20 also shows that the applicant was promoted to the rank of specialist five (SP5) on 24 October 1967, and that this is the highest rank he attained while serving on active duty. Item 33 (Appointments and Reductions) further confirms that subsequent to his promotion to SP5, he was reduced for misconduct three times, resulting in his holding the rank of private/E-1 (PV1) at the time of his discharge.

The applicant’s record also reveals an extensive disciplinary history during the period of enlistment under review. This includes six separate periods of his being absent without leave (AWOL) between 4 June 1969 and 12 February 1972, which resulted in his accruing a total of 241 days of time lost.

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The record also shows that during the enlistment under review, 26 October 1967 through 20 March 1972, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following eight occasions for the offenses indicated: 11 April 1968, for absenting himself from his organization without proper authority; 2 May 1968, for absenting himself from his place of duty without proper authority; 5 March 1969, for parking his assigned tank and leaving the engine running for approximately 60 minutes, switching jobs without permission, and failing to obey the order of a noncommissioned officer (NCO); 17 April 1969, for failing to be at his appointed place of duty at the proper time and failing to obey the order of a commissioned officer; 12 June 1969, for being absent without leave (AWOL) for six days;
9 September 1969, for being AWOL for 17 days; 21 April 1971, for failing to walk his guard post; and 26 April 1971, for failing to report to guard duty.

The specific facts and circumstances surrounding the applicant’s discharge processing are not on file. However, the record does include a properly constituted separation document (DD Form 214) that contains the authority and reason for the applicant’s discharge. The applicant authenticated this document with his signature on the date of his separation, thereby verifying that the information contained therein was correct at the time it was prepared.

The applicant’s DD Form 214 confirms that the applicant was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of court-martial. This document also shows that at the time of his separation, he had completed 3 years, 8 months, and 21 days of his current enlistment and a total of 5 years, 11 months, and 27 days of creditable active military service. It also verifies that he had accrued a total of 241 days of time lost due to AWOL.

There is no indication that the applicant requested an upgrade of his discharge from the Army Discharge Review Board (ADRB) within its 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.

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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 carefully considered the applicant’s overall record of service, to include his combat service in the RVN, during which he earned both the PH
and CIB. However, given his extensive disciplinary history, this factor is not sufficiently mitigating to warrant the requested relief.

2. The evidence of record confirms that the applicant received an honorable discharge for his 2 year, 3 month, and 6 day period of active military service from 20 July 1965 through 25 October 1967. However, during the enlistment under review, between 26 October 1967 and 20 March 1972, he accepted NJP on eight separate occasions for a myriad of infractions, and he went AWOL on six separate occasions totaling 241 days.

3. The applicant’s record is void of the specific facts and circumstances surrounding his discharge processing. However, it does confirm that he was charged with an offense that was punishable under the UCMJ with a punitive discharge. It also contains a properly constituted DD Form 214, which identifies the reason and characterization of his discharge. Therefore, the Board presumes Government regularity in the discharge process.

4. The record confirms that the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of
court-martial. In connection with such a discharge, he was charged with the commission of an offense 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 would have admitted guilt to the stipulated offense under the UCMJ.

5. 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. Thus, the Board concludes that the requested relief is not warranted in this case.

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.

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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__ ___FE__ ___ENA DENY APPLICATION

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

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INDEX

CASE ID	AR2003089608
SUFFIX
RECON
DATE BOARDED	2003/07/DD
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1972/03/20
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In lieu of court-martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.