MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            3 February 1999
	DOCKET NUMBER:   AC98-12855
   AR1998012369

	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. Loren G. Harrell		Director	
	Ms. Wanda L. Waller		Analyst	

The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Fred K. McCoy		Member	
	Mr. Mark D. Manning		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:  That his discharge under other than honorable conditions be upgraded to honorable.  

APPLICANT STATES:  That he could not face going back to Vietnam after being there for one year.  In support of his application, he submits a letter of support from his wife, numerous certificates and letters of recognition, and newspaper articles attesting to his good post-service accomplishments.    

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

The applicant enlisted with parental consent on 3 July 1967 for a period of
3 years.  He successfully completed his training and was transferred to Fort Leonard Wood, Missouri, for duty as a heavy vehicle operator.  On 29 August 1968 he was transferred to Vietnam where he served as a tractor operator and was advanced to E-5.  He returned to the United States on 22 August 1969 for assignment at Fort Leonard Wood, Missouri.

The applicant went AWOL on 9 October 1969 and remained absent until he was apprehended by civil authorities in March 1971 in Truth or Consequences, New Mexico.  On 7 May 1971, he was convicted by the U.S. District Court, Albuquerque, New Mexico, for illegal possession of marijuana and was sentenced to two years (reduced to probation) at the Federal Youth Center, Englewood, Colorado.  Records show he remained in the hands of civilian authorities until on or about 2 June 1971 and he was returned to military control.

Charges were preferred against the applicant on 10 August 1971 for desertion from 9 October 1969 to 1 June 1971.

On 17 August 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He indicated in his request that he understood that he could receive an undesirable discharge and that he personally made the choice to submit his request.  Additionally, he elected not to submit a statement in his own behalf.

The applicant’s intermediate commanders submitted statements recommending approval of his request for discharge and that he be furnished an undesirable discharge. 

On 31 August 1971 the appropriate authority approved his request for discharge and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on
7 September 1971 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 4 months, and 16 days of total active service and had 600 days of lost time due to AWOL and confinement by civil authorities.

On 6 November 1981 the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to honorable.  He contended that he was only 18 years old during his tour of duty in Vietnam and when he was confronted with combat he turned to marijuana.  When he returned to the states, he was scared and confused and did not know where to turn for help so he went AWOL. He contended that he turned himself in on 26 May 1971 and received a discharge for the good of the service with an undesirable discharge.  He also stated that he felt he was unable to complete his tour in the Army because of his nervous situation.  The ADRB determined that the applicant was properly discharged and denied his appeal on 26 May 1982. 
   
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.

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 the aforementioned requirement.

2.  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.

3.  Careful consideration has been given to the applicant’s post-service conduct.  However, his extensive absence for which court-martial charges had been preferred against him is too serious to warrant relief.

4.  The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date. 

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

___sac __  __mdm _  __fkm ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12855/AR1998012369	
SUFFIX		
RECON	 	
DATE BOARDED	1999/02/03	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1971/09/07	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	Ch 10	
BOARD DECISION	NC	
REVIEW AUTHORITY		
ISSUES         1.  A01.33		
2.  A70.00		
3.		
4.		
5.		
6.