MEMORANDUM OF CONSIDERATION


            IN THE CASE OF:


            BOARD DATE:            30 October 2003
            DOCKET NUMBER:   AR2003091698

      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. Yvonne J. Foskey                |     |Analyst             |

  The following members, a quorum, were present:

|     |Mr. Curtis L. Greenway              |    |Chairperson         |
|     |Mr. Ernest W. Lutz                  |    |Member              |
|     |Mr. Larry C. Bergquist              |    |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)
APPLICANT REQUESTS:  In effect, that his undesirable discharge (UD) be
upgraded.

APPLICANT STATES:  In effect, that he served and fought for his country in
the Republic of Vietnam (RVN) and when his unit received orders to return
to the United States, he should have moved with the unit.  However, his
papers were lost and he was forced to stay in the RVN for an additional six
months.  He states that after this happened, he was unable to adjust
because he was depressed and he received no medical help for this
condition.  He now believes his discharge should be changed and he should
be entitled to a pension and medical benefits based on the medical problems
he suffers from as a result of his service.

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

On 20 June 1969, he enlisted in the Regular Army for 3 years.  His Enlisted
Qualification Record (DA Form 20) shows that he successfully completed
basic training at Fort Polk, Louisiana and advanced individual training
(AIT) at Aberdeen Proving Ground, Maryland.  Upon completion of AIT, he was
awarded military occupational specialty (MOS) 63H (Engine Power Train
Repairman).

The applicant’s record confirms that the highest rank he attained while
serving on active duty was specialist four (SP4).  It also shows that he
served in the RVN from May 1970 through May 1971, and that he earned the
following awards during his tenure on active duty:  National Defense
Service Medal; Vietnam Service Medal; Republic Vietnam Campaign Medal with
60 Device; Bronze Star Medal; and 4 overseas bars.

The record does reveal a disciplinary history that includes the applicant’s
acceptance of nonjudicial punishment (NJP) under the provisions of Article
15
of the Uniform Code of Military Justice (UCMJ) on the following two
occasions for the offense indicated:  21 May 1971, for being absent without
leave (AWOL); and 23 June 1971, for being AWOL.

On 17 April 1972, the applicant appeared in a civilian court in Morris,
Oklahoma to face a charge of rape.  He was confined by civil authorities
pending trial.  On 31 May 1972, he appeared in court and pled guilty to the
offense.  The resultant sentence was a two year suspended sentence and
payment of court costs.
On 13 June 1972, the applicant returned to military control and a court-
martial charge sheet (DD Form 458) was prepared preferring a court-martial
charge against him for being AWOL from on or about 11 December 1971 until
on or about 13 June 1972.

On 22 June 1972, the applicant consulted legal counsel and was advised of
the basis for his contemplated trial by court-martial under circumstances
that could lead to a bad conduct or dishonorable discharge, the possible
effects of an UD, and of the procedures and rights that were available to
him.  Subsequent to this counseling, the applicant voluntarily requested
discharge, in lieu of trial by
court-martial.  In his request for discharge, the applicant acknowledged
his understanding that he would be deprived of many or all Army benefits,
that he could be ineligible for many or all benefits administered by the
Department of Veterans Affairs (VA), and that he could be deprived of his
rights and benefits as a veteran under both Federal and State law.

The appropriate authority approved the applicant’s request for discharge
and directed that he receive an UD and be reduced to the lowest enlisted
grade.  On 20 July 1972, the applicant was discharged accordingly.

The DD Form 214 issued to the applicant on the date of his separation
confirms that he was discharged under the provisions of chapter 10, Army
Regulation
635-200, in lieu of trial by court-martial.  This document also confirms
that at the time of his discharge, he had completed 2 years, 4 months and
15 days of creditable active military service and he had accrued 259 days
of time lost due to AWOL and confinement.

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 claim that his discharge should be upgraded because
served and fought for his country in the RVN and based on his overall
record of service were carefully considered.  However, these factors were
not found to be sufficiently mitigating to warrant the requested relief.

2.  The evidence of record shows the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge.  The record further confirms that after consulting with defense
counsel, the applicant voluntarily requested separation in lieu of trial by
court-martial.
3.  The evidence of record further confirms that all requirements by law
and regulation were met, the rights of the applicant were fully protected
throughout the separation process, and the character of his discharge
accurately reflects his overall record of service.  As a result, it is
determined that an upgrade to the applicant’s discharge would not be
appropriate at this time.

4.  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.

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

____CLG__  __EL___  __LB__    DENY APPLICATION




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



                                    INDEX

|CASE ID                 |AR200.091698                           |
|SUFFIX                  |                                       |
|RECON                   |                                       |
|DATE BOARDED            |2003/11/                               |
|TYPE OF DISCHARGE       |UOTHC                                  |
|DATE OF DISCHARGE       |1972/07/20                             |
|DISCHARGE AUTHORITY     |AR 635-200.  .                         |
|DISCHARGE REASON        |Good of service; lieu of court-martial |
|BOARD DECISION          |DENY                                   |
|REVIEW AUTHORITY        |                                       |
|ISSUES         1.       |                                       |
|2.                      |                                       |
|3.                      |                                       |
|4.                      |                                       |
|5.                      |                                       |
|6.                      |                                       |