MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 December 1999                   
	DOCKET NUMBER:   AR1999028661

	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. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Christopher J. Prosser		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 (UOTHC) be upgraded.

APPLICANT STATES:  That he was given a discharge UOTHC for striking a prisoner who was a draft dodger who harassed soldiers with disparaging remarks about their service to their country.  His belligerent behavior provoked him and he responded inappropriately.  However, the type of discharge given was harsh in light of his service record, which included two Purple Hearts.  He provides his DD Forms 214, a copy of his DA Form 20, Personnel Qualification Record, and a     14 March 1978 from the Army Discharge Review Board concerning his failure to apply for a De Novo hearing within the suspense date (which he apparently never received) as supporting evidence.

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

He enlisted in the Regular Army on 16 May 1963.  He was honorably discharged on 26 May 1964 for the purpose of immediately reenlisting on 27 May 1964.  

On 28 February 1966, the applicant was convicted by a special court-martial of being absent without leave (AWOL) for the period 24 January – 20 February 1966.  He was sentenced to confinement at hard labor for 6 months, to forfeit $80.00 pay for 6 months and to be reduced to Private, E-1.  He served 28 days in confinement.

The applicant arrived in Vietnam on 16 April 1966 where he served as a battalion communications driver, door gunner, and long-range reconnaissance patrolman. He was promoted to Sergeant, E-5 on 23 June 1967.  He departed Vietnam on   9 November 1968.  He had been awarded the Purple Heart 1st oak leaf cluster and six awards of the Air Medal.

On 18 December 1968, the applicant was assigned duties as a 95B40, Military Policeman (Supervisor) with the 68th Military Police Detachment and Forward Area Support Shop, Selfridge Air Force Base, MI.

On 30 April 1969, court-martial charges were preferred against the applicant charging him with conspiracy to maltreat one prisoner; maltreat two prisoners; and assault (by pointing a loaded shotgun at) one prisoner.  (The investigation into these incidents revealed both these prisoners were soldiers, not draft dodgers, and the one cited in all three charges was a Vietnam combat veteran who had gone AWOL after his return from Vietnam.)

On 16 July 1969, 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.

The brigade-level commander recommended approval of the applicant’s request based on the report of investigation which bore out the allegations of conspiracy, maltreatment and assault.  He gave consideration to the applicant’s past military service with an outstanding combat record; however, he felt it did not alter the fact that the basic rights of an individual were flagrantly violated.  Therefore, he recommended the applicant be given an undesirable, UOTHC discharge. 

On 26 August 1969, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

On 2 September 1969, 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 6 years, 1 month and 21 days of creditable active service and had 57 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 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 charges have been preferred and must include the individual’s admission of guilt.  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.  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.

3.  The applicant’s chain of command had considered his prior combat service in determining the character of his discharge.  Considering his non-commissioned officer status, the position of power and responsibility he held, and the seriousness of the offenses charged, his command determined that such service was not sufficiently mitigating to warrant a general discharge.  The Board concludes that such a determination was and, at this point in time, still is appropriate.

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

__gdp___  __clg___  __cjp___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999028661	
SUFFIX		
RECON		
DATE BOARDED	19991229	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19690902	
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.