MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            25 March 1999
	DOCKET NUMBER:   AC98-10168
                                              AR1998013765

	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	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. Elzey J. Arledge,.Jr.		Member	
	Mr. Lester Echols		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 an honorable discharge.  He also requests that the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with device, and the Sharpshooter Badge be listed on his DD Form 214.  

APPLICANT STATES:  That his request for a discharge for the good of the service in lieu of trial by court-martial was improper and was not reviewed by the Staff Judge Advocate.  He states that his counsel was inadequate, that the AWOL charge was minor, and that he never understood the chapter 10 procedures.  He states that his deprived background and moral waiver to enlist impaired his ability to serve in the Army.  He also states that the marijuana search was illegal.  He states that his service in Vietnam in combat situations warrants an upgrade of his discharge.  He states that he has turned his life around and is now a good citizen.  

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

The applicant was granted a moral and minority waiver to enter the Army on 29 May 1967 for a period of 3 years.  He was awarded military occupational specialty 76P (Stock Control and Accounting Specialist).  His highest rank attained was private first class (E-3).

The applicant was assigned to Germany from December 1967 through
June 1968 and received nonjudical punishment for destroying government property.

The applicant was assigned to Vietnam from 4 July 1968 through 25 October 1969.  While assigned to Vietnam the applicant received nonjudical punishment for failure to go to his appointed place of duty.  He was convicted by a special court-martial on 15 December 1968 for wrongful possession of marijuana.  He received his second court-martial conviction (special) on 27 March 1969 for failure to obey a lawful order, for violating a lawful general regulation, and for wrongful possession of marijuana.  He was sentenced to a forfeiture of $70.00 for 6 months, confinement at hard labor for 6 months, and reduction to private (E-1).  The applicant was placed in confinement from 10 April through 1 August 1969.  He completed his confinement and was assigned to Hawaii.

He was assigned to Hawaii from August 1969 through October 1969 and subsequently assigned to Fort Devens, Massachusetts.  While assigned to
Fort Devens the applicant received nonjudical punishment for failure to go to his appointed place of duty.  He went AWOL on 22 May 1970 and returned to military control on 10 June 1970.  He was convicted by a special court-martial on 27 July 1970 for having in his possession a small amount of marijuana.
The applicant was notified of the charges preferred against him for being AWOL (20 days).  After consulting with counsel he voluntarily submitted a request to be discharged for the good of the service in lieu of trial by court-martial.

The request for discharge was approved by the appropriate authority and on 
6 August 1970 the applicant was discharged from the Army under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  He completed 
2 years, 8 months, and 2 days of total active service and had 190 days of lost time due to AWOL and confinement.

The applicant twice submitted a request for an upgrade of his discharge to the Army Discharge Review Board which were denied on 24 January 1972 and 
10 October 1980.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after court-martial charges have been preferred.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

According to the Manual for Courts-Martial, Table of Maximum Punishment, section B, states in pertinent part, that if an accused is found guilty of an offense or offenses for none of which dishonorable or a bad conduct discharge is authorized, proof of two or more previous convictions during the three next year preceding the commission of any offense of which the accused stands convicted will authorize a bad conduct discharge and forfeiture of all pay and allowances and, if the confinement otherwise authorized is less than three months, confinement at hard labor for 3 months .

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 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 and the Manual for Courts-Martial, Table of Maximum Punishment, section B.

2.  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.

3.  The Board notes that the applicant acknowledged by signature after appropriate and proper consultation with military counsel that he understood the proceedings and the effects of his 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. 

4.  The Board considered the applicant’s good service during the period of enlistment under review.  However, it was found not be sufficiently mitigating to warrant an upgrade of his discharge.   

5.  The Board found no evidence submitted with the application or the evidence of record to support the applicant contentions that his deprived background and moral waiver to enlist diminished his ability to serve in the Army.

6.  The applicant’s contention that the marijuana obtained through an illegal search serves as no basis for an upgrade of his discharge.

7.  The applicant’s contention that he has exhibited good post citizenship since his separation from the Army has been noted by the Board.  However, the Board concludes that the applicant’s good citizenship was not meritorious or exceptional in nature that would compensate for his military misconduct.

8.  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.

NOTE:  Request applicant’s separation document be corrected to show he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with device, 2 overseas service bars, and the Sharpshooter Badge.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-10168/AR1998013765	
SUFFIX		
RECON	19990325	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	( UOTHC, )	
DATE OF DISCHARGE	1970/08/06	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	 DENY	
REVIEW AUTHORITY		
ISSUES         1.	A92.21	
2.	A92.07	
3.	A93.05	
4.	A93.27	
5.	A94.07	
6.	A02.17