RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         18 July 2006
      DOCKET NUMBER:  AR20050017556


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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. Lester Echols                 |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Ernestine R. Fields           |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration that his undesirable
discharge (UD) be upgraded.

2.  The applicant states, in effect, he served one good enlistment and
reenlisted to go back to the Republic of Vietnam (RVN).  However, after he
reenlisted, he was assigned stateside and he could not adapt.

3.  The applicant provides his separation document (DD Form 214) and three
character reference letters in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number AC93-
12039, on
19 January 1994.

2.  The applicant's record shows that he initially enlisted in the Regular
Army and entered active duty on 28 February 1969.  He was trained in and
awarded military occupational specialty (MOS) 64B (Heavy Vehicle Driver).

3.  On 30 March 1970, while serving in the RVN, the applicant was honorably
discharged for the purpose of immediate reenlistment, and on 31 March 1970,
he reenlisted for 3 years.

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he was promoted to specialist four (SP4) on 5 November 1969, and that this
is the highest rank he attained while serving on active duty.  It also
shows that he served in the RVN from 8 September 1969 through 18 October
1970, and that during this tour, he was assigned to Company D, 2nd
Battalion, 9th Infantry Regiment, 4th Infantry Division, performing duties
in MOS 64B as a heavy vehicle driver.

5.  Item 41 of his DA Form 20 shows that during his tenure on active duty,
the applicant earned the National Defense Service Medal, Vietnam Service
Medal, RVN Campaign Medal with 1960 Device, Army Commendation Medal with
1st Oak Leaf Cluster (2nd Award), Marksman Marksmanship Qualification Badge
with Rifle Bar, and 2 Overseas Bars.

6.  Item 44 (Time Lost) shows that the applicant accrued 323 days of time
lost due to being absent without leave (AWOL) on five separate occasions
between
6 January 1971 and 20 March 1972 and being in confinement between
1 September 1971 and 22 November 1971.

7.  The applicant's record also shows that on 27 September 1971, a special
court-martial (SPCM) found him guilty of being AWOL from on or about 7 July
1971 through on or about 21 August 1971.  His sentence included confinement
at hard labor for 75 days, forfeiture of $50.00 per month for six months,
and reduction to private (PV1)/E-1.

8.  On 8 April 1972, a court-martial charge was preferred against the
applicant for being AWOL from on or about 13 January 1972 through on or
about 21 March 1972.

9.  On 11 April 1972, he consulted with legal counsel and was advised of
the basis for the contemplated court-martial, its effects and of the
maximum permissible punishment under the Uniform Code of Military Justice
(UCMJ).  He was also advised of the effects of an UD discharge.  Subsequent
to his consultation with legal counsel, he voluntarily requested discharge
for the good of the service, in lieu of trial by court-martial.  At the
time, the applicant declined to submit a statement in his own behalf.  In
his request for discharge, he acknowledged that he understood that if his
discharge request was approved, he could 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.
He further indicated that he understood that he could encounter substantial
prejudice in civilian life by reason of an UD.

10.  On 14 April 1972, the separation authority approved the applicant's
request for discharge and directed that he receive an UD.  On 24 April
1972, the applicant was discharged accordingly.  The DD Form 214 he was
issued at the time confirms he completed a total of 2 years, 3 months, and
6 days of total creditable active military service, and that he accrued 323
days of time lost due to AWOL and confinement.

11.  The applicant provides three letters of support that primarily attest
to the applicant's good character and indicate the applicant served his
country well in the RVN, but was unable to cope with stateside duty.

12.  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 UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded based
on his RVN service, and the supporting documents he submitted were
carefully considered.  However, while the statements speak well of the
applicant, the matters presented are not sufficiently mitigating to support
a change to the original Board decision, or to grant the requested relief.


2.  The applicant's honorable service is documented in the DD Form 214 he
was issued on 30 March 1971, at the time of his reenlistment.  The evidence
of record also confirms he was charged with the commission of an offense
punishable under the UCMJ with a punitive discharge.  After consulting with
defense counsel, he voluntarily requested discharge in lieu of trial by
court-martial.  All requirements of law and regulation were met and that
the rights of the applicant were fully protected throughout the separation
process.

3.  The applicant’s record confirms he was processed for separation in lieu
of trial by court-martial at his own request, in order to avoid a trial by
court-martial that could have resulted in his receiving a punitive
discharge.  The separation authority approved his request and appropriately
directed that he receive an UD, which is consistent with regulatory policy.


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.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LE __  __PHM __  ___ERF _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AC93-12039, dated 19 January 1994.




                                  _____Lester Echols______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017556                           |
|SUFFIX                  |                                        |
|RECON                   |1994/01/19                              |
|DATE BOARDED            |2006/07/18                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1972/04/24                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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