MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 March 1999 
	DOCKET NUMBER:   AR1999022455

	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. James E. Vick		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Allen L. Raub		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 discharge under other than honorable conditions be upgraded to honorable.  

APPLICANT STATES:  In effect, that at the time of his discharge, he was informed his discharge could be upgraded after a period of six months to honorable with 100% benefits.  He also contends that he was drafted at a very young age, served one year in Vietnam as an infantryman and upon his return to the states he had difficulty adjusting, so he went AWOL.  He goes on to state that, without counsel, he was confused and accepted the discharge while being led to believe that it could be upgraded. 

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

One month prior to his 20th birthday, the applicant was inducted on 2 April 1969.  He successfully completed his basic training at Fort Bragg, North Carolina, and was transferred to Fort Dix, New Jersey, for advanced individual training (AIT).  

While in AIT, nonjudicial punishment (NJP) was imposed against the applicant on 6 August 1969 for disobeying a lawful order from his superior.  His punishment consisted of a forfeiture of pay.     

He was transferred to Vietnam, for duty as a light weapons infantryman on
9 September 1969.

While in Vietnam, on 4 June 1970, NJP was imposed against the applicant for refusing to obey a direct order from his superior commissioned officer.  His punishment consisted of a forfeiture of pay.

On 10 November 1970, NJP was again imposed against the applicant for being AWOL from 7 November 1970 to 17 November 1970.  His punishment consisted of 7 days of restriction.

He received NJP on 30 November 1970 for breaking restriction and failing to go to his appointed place of duty.  His punishment consisted of a reduction to pay grade E-3 and a forfeiture of pay.

NJP was again imposed against the applicant on 29 January 1971 for being AWOL from 13 December 1970 to 13 January 1971.  His punishment consisted of a reduction to pay grade E-3, a forfeiture of pay and 14 days of extra duty. 

On 29 March 1971 the applicant was convicted by summary court-martial of being AWOL from 17 February 1971 to 16 March 1971.  He was sentenced to forfeit $50 pay per month for 1 month, reduction to pay grade E-1, and to be confined at hard labor for 30 days.  The convening authority the sentence on
7 April 1971. 
On 18 May 1971 he went AWOL and remained absent until he returned to military control on 30 October 1972.

Charges were preferred against the applicant for the aforementioned AWOL on
7 November 1972.  

After consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.  He elected not to make a statement in his own behalf.  

The applicant’s intermediate commanders recommended approval of his request for discharge and that he be furnished an Undesirable Discharge Certificate. 

On 31 January 1973 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
16 February 1973 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 1 month, and 24 days of total active service.  He also had 72 days of lost time due to AWOL and confinement and 552 days lost subsequent to normal expiration of term of service.

On 28 December 1978 the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to general or honorable.  He contended that he was unable to adjust to military life after his return from Vietnam which subsequently led to his discharge.  He also contended that his record shows he had no problems with military life prior to his tour in Vietnam  and that he spent 10 out of his 12 month tour in the field.  The ADRB determined that the applicant was properly discharged and denied his appeal on 15 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 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.  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.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not supported by the evidence submitted or the evidence of record and his undistinguished record of service is not sufficiently mitigating to warrant relief.

4.  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

__jev ___  __rwa ___  __alr____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022455	
SUFFIX		
RECON		
DATE BOARDED	1999/03/24	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1973/02/16	
DISCHARGE AUTHORITY	AR635-200 CHAPTER 10  	
DISCHARGE REASON	IN LIEU OF COURT-MARTIAL	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.000	
2.  835	A93.01/144.9301	
3.  400	A01.39/144.0139	
4.  813	A92.23/144.9223	
5.  821	A92.31/144.9231	
6.