MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            3 November 1999                  
	DOCKET NUMBER:   AR1999024540

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Stanley Kelley		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 (UOTHC) be upgraded to general or, failing that, that he be determined to be eligible for medical and dental benefits.

APPLICANT STATES:  That he received an honorable discharge from the Army National Guard and served honorably in Germany and the continental United States before he was sent to Vietnam.  His trouble started in Vietnam when he was introduced to drugs.  He served his first 6 or 7 months in Vietnam well, fighting and living hard, until he went on rest and recreation.  That is when he became addicted and he started going absent without leave (AWOL).  After his one court-martial he was told he would be sent to Long Binh jail.  He panicked and went AWOL again.  In Chicago he turned himself; he was not apprehended.  The way he received his discharge was very quick.  He did not have time to think about what he was doing.  He really felt he should not sign anything, but he was told he would be sent to the stockade if he did not sign.  He has hearing loss and ulcers and needs medical treatment.  No supporting evidence is provided.

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

After having had prior service in the Army National Guard, he enlisted in the Regular Army on 13 September 1963.  He was honorably discharged on           26 November 1964 for the purpose of immediately reenlisting on 27 November 1964 for 6 years.  His DA Form 20, Personnel Qualification Record shows his conduct and efficiency, up until he arrived in Vietnam, were rated as “excellent.”  (He did accept non-judicial punishment under Article 15, Uniform Code of Military Justice on one occasion in Baumholder, Germany for absenting himself from his unit and on two occasions at Fort Campbell, KY for being AWOL for 8 days and for failing to go to his appointed place of duty, respectively.)  

On 16 December 1967, the applicant was assigned to Vietnam where he served as an airborne-qualified rifleman.

On 29 July 1968, the applicant was convicted by a special court-martial of being AWOL from 24 April to 18 May 1968.  He was sentenced to hard labor without confinement for 3 months and to be reduced to pay grade E-1.

On 4 December 1968, the applicant was convicted by a special court-martial of being AWOL from 18 August to 30 October 1968.  He was sentenced to confinement at hard labor for 6 months and to forfeit $73.00 pay for 6 months.  He served in confinement from 4 to 28 December 1968.

On 29 December 1968, the applicant departed AWOL.  

On 17 September 1973, the applicant completed a separation physical examination and was found qualified for separation.
On 20 September 1973, court-martial charges were preferred against the applicant charging him with AWOL for the period 29 December 1968 to              14 September 1973. 

On 26 September 1973, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation       635-200, Chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted a statement in his own behalf.  He wrote that he had been AWOL for a long time, he believed he served to the best of his ability and he enjoyed the Army, but he was married and had a family and he felt it would be to his advantage to ask for a discharge.  

On 8 October 1973, the appropriate authority approved the request and directed the applicant receive an undesirable, discharge UOTHC.

On 12 October 1973, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, discharge in lieu of trial by court-martial.  He had completed 5 years, 7 months and 29 days of creditable active service and had 820 days of lost time plus 1033 days lost subsequent to his normal expiration term of service. 

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.  The type of discharge and character of service will be determined solely by the military record during the current enlistment from which the soldier is being separated.  A discharge under other than honorable conditions is normally considered appropriate when discharge is under the provisions of Chapter 10.

On 15 December 1975, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded 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.  There is no indication that the request was made under coercion or duress.  The applicant did not have to sign the request for discharge; he could have elected to go to the stockade and almost certainly face a punitive discharge through court-martial proceedings.  The Board concludes the applicant chose to request an administrative discharge rather than risk the consequences of or consumption of time involved in a court-martial.  

3.  The Board notes the applicant’s previous good service even during his last enlistment.  However, the type of discharge and character of service is determined by the military record during the current enlistment from which the soldier is being separated.  Although the first three years of his enlistment may have been good, his last three years were not.  The type of discharge given was commensurate with his overall record of service during his last period of service.

4.  The Department of the Army has no jurisdiction over veterans’ medical and dental benefits, which are under the purview of the Department of Veterans Affairs.  The applicant should submit a request to that Department requesting an exception to policy, noting his previous honorable discharge and his conduct and efficiency ratings during the first three years of his last enlistment.

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

__fne___  __esc___  ___sk___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024540	
SUFFIX		
RECON		
DATE BOARDED	19991103	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1973/10/12	
DISCHARGE AUTHORITY	AR 635-200, Ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.