MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 13 November 2003
                  DOCKET NUMBER: AR2003089765

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Ms. Eloise C. Prendergast		Member
Mr. Ronald E. Blakely		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 honorable or general.

APPLICANT STATES: In effect, that he was advised by counsel to accept separation in lieu of court-martial because he had gone absent without leave (AWOL), was guilty of the offense, and would not be allowed to present any mitigating factors. He contends that he was also advised that his perfect military record including an award of the Distinguished Flying Cross would be enough for the separation authority to grant an honorable or general discharge in his case. He further contends that he was recommended for promotion to E-5 and placed on the promotion list for E-5; however, after his tour in Vietnam he had problems with his unit and they intentionally denied his promotion. He goes on to state that he was told by a sergeant that the only way to correct his problems with his unit and bring these problems to light was to go AWOL for 30 days and then turn himself into an Army post outside of his unit, which he did. He states that after he turned himself in he discovered that his service records had been falsified and several awards were missing. He believes that if his records had been accurate he would not have been given an undesirable discharge. In support of his application, he submits two attachments: a DD Form 214 (Report of Separation or Discharge) for the period ending 29 June 1972 and a DD Form 214 for the period ending 15 April 1974.

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

The applicant enlisted on 29 March 1971 for a period of 3 years. He served as a helicopter repairman and was discharged on 29 June 1972 for immediate reenlistment. He reenlisted on 30 June 1972 for a period of 6 years. The applicant served as a helicopter repairman in Vietnam from 1 October 1972 through 1 February 1973.

On 26 June 1973, nonjudicial punishment was imposed against the applicant for failure to repair. His punishment consisted of a reduction to E-3 (suspended for 30 days) and a forfeiture of pay. The applicant authenticated Sections II (Acknowledgement of Notification) and IV (Acknowledgement of Imposition of Punishment) on this DA Form 2627-1 (Record of Proceedings Under Article
15, UCMJ) on 27 June 1973.

On 6 September 1973, nonjudicial punishment was imposed against the applicant for failure to repair. His punishment consisted of 7 days of correctional custody (suspended for 60 days) and a reduction to E-3 (suspended for 60 days). The applicant authenticated Sections II and IV on this DA Form 2627-1 on
6 September 1973.

The facts and circumstances surrounding the applicant's discharge are not contained in the available records. However, the applicant's DD Form 214 shows that he was discharged under other than honorable conditions on 15 April 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served 2 years, 9 months and 10 days of creditable service with 97 days lost. The applicant's DA Form 20 (Enlisted Qualification Record) shows his lost time was due to AWOL.

There are no orders for the Distinguished Flying Cross in the applicant' service personnel records.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge 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.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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. There is no evidence of record, and the applicant has provided no evidence, to support his contention that he was awarded the Distinguished Flying Cross.
3. There is also no evidence of record, and the applicant has provided no evidence, to support his contention that he was told by a sergeant to go AWOL.

4. 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, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.

5. Accordingly, the type of discharge directed and the reason for separation appear to be appropriate.

6. The available records show that the applicant’s record of service included two nonjudicial punishments and 97 days of lost time and for that reason his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Also, his record of service was not satisfactory. Therefore, the applicant is not entitled to an honorable discharge or a general discharge.

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

AAO____ ECP____ REB_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003089765
SUFFIX
RECON
DATE BOARDED	20031113
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19740415
DISCHARGE AUTHORITY	AR 635-200 Chapter 10
DISCHARGE REASON	For the good of the service
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.