MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 November 1999                   
	DOCKET NUMBER:   AR1999025479

	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 honorable.

APPLICANT STATES:  That he was 17 years old when he enlisted.  He was     18 years old when he reenlisted for Vietnam.  He was too young to accept the responsibilities of combat.  He provides no supporting evidence.

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

He was born on 14 December 1952.  He enlisted in the Regular Army on          28 February 1970.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 51A (Construction and Utilities Worker).  

On 24 September and 7 October 1970, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for absenting himself from his place of duty.  

On 29 March 1971, the applicant was honorably discharged for the purpose of immediately reenlisting on 30 March 1971 for overseas reenlistment option – Vietnam.

On 2 June 1971, the applicant arrived in Vietnam and was assigned to the 160th Engineer Detachment where he performed duties as a carpenter.  (His MOS was later changed to 51B, Carpenter.)  

On 15 August 1971, the applicant accepted NJP under Article 15, UCMJ for violating a lawful general regulation by being in an off limits area without authorization.

On 11 March 1972, the applicant departed Vietnam and was assigned to Fort Ord, CA.  

Between April and July 1972, the applicant accepted NJP under Article 15, UCMJ on three occasions for being absent without leave (AWOL), absenting himself from his unit, and failing to go to his appointed place of duty, respectively.

On 24 August 1972, court-martial charges were preferred against the applicant charging him with AWOL for the period 31 July – 23 August 1972. 

On 11 December 1972, 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 wherein he stated that he did not like the Army because he was getting married and once before he was to get married but the Army messed him up and he was not going to have that again.  .

On 12 December 1972, the applicant completed a separation physical examination, noted on the Report of Medical Examination that he was in good health and was found qualified for separation.

On 9 January 1973, the appropriate authority approved the request and directed the applicant receive an undesirable, discharge UOTHC.

On 6 February 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 2 years, 8 months and 6 days of creditable active service and had 91 days of lost time. 

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.

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.  There is no evidence of record to show the applicant was in combat.  In addition, the two Article 15s he received prior to assignment to Vietnam and the one Article 15 he received while in Vietnam were for a relatively minor offenses.  His serious misconduct did not begin until after he returned from Vietnam.  His 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 type of discharge given was and still is appropriate given the numerous instances of his previous misconduct, the length of his AWOL and the fact he was an experienced soldier by time he was assigned to Fort Ord, CA.  
3.  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	AR1999025479	
SUFFIX		
RECON		
DATE BOARDED	19991103	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1973/02/06	
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.