MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            28 September 2000
	DOCKET NUMBER:   AR2000035623

	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. Carl W.S. Chun		Director	
	Ms. Antoinette E. Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Donald P. Hupman		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 undesirable discharge (UD) be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that he returned to California from the Republic of Vietnam (RVN).  He then states that he was told by an officer that he could go home, then report to Fort Dix, New Jersey and be discharged from an absent without leave (AWOL) status.  He states that after he spent 18 months in RVN, he followed the orders by going home and then reporting to Fort Dix.  He points out that he did not realize he was given a dishonorable discharge (sic UD), since no one contacted him while he was at home.  He further states that he tried to get information without success and he also did not know he could ask for a review.  He relies on his service record in support of his application.

COUNSEL CONTENDS:  That the applicant’s current discharge under the provisions of Army Regulation 635-200, chapter 10, characterized as under other than honorable conditions at the time a UD, should be upgraded to an honorable discharge.  He served in Vietnam in combat from 7 January 1970 to 6 July 1971, which shows he had excellent conduct and efficiency reports.  Counsel further states that the applicant received his first and only unsatisfactory conduct and efficiency rating in December 1970.  It is during this period of time that he was told by an officer that he could go home and then report to Fort Dix for discharge.  He maintains that the applicant was attempting to follow the instructions given, no matter how improper they were and was subsequently placed in an AWOL status, for which he received the current discharge.  Therefore, counsel requests that the applicant’s case be provided careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.

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

On 4 August 1969, he enlisted in the Regular Army for 3 years.  On 18 August 1969, he completed his basic training at Fort Jackson, South Carolina.  On 
11 October 1969, he entered advanced training, in military occupational specialty (MOS) 62G20 (Crawler Tractor Operator), at Fort Leonard Wood, Missouri.  Upon completion of training, and award of MOS 62G20, he was assigned to the RVN for duty in his MOS on 12 December 1969.

On 26 March 1970, he received a summarized nonjudical punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for taking, without authority and permission, a 5-ton dump truck, valued at $14,606, military property of the United States, and caused it to be damaged by backing it into another 5-ton dump truck, without having ground guides posted.  His punishment included an oral reprimand 
and 7 days of extra duty. 

On 7 April 1971, he received NJP, for being AWOL from 24-30 March 1971 and for disobeying orders by being in an off-limits area in the RVN after curfew.  His punishment included reduction to pay grade E-2, forfeiture of $131.00 pay per month for 2 months, 45 days of extra duty and restriction. 

On 6 May 1971, he returned to the Continental United States and was assigned to Fort Dix, New Jersey, enroute to a further assignment in Europe.  

On 14 February 1972, the applicant surrendered to military authorities and was charged with one specification of violation of Article 86, UCMJ, for being AWOL from 15 June 1971 to 14 February 1972.

On 16 February 1972, the applicant consulted with legal counsel, and voluntarily requested discharge under the provisions of chapter 10, Army Regulation 
AR 635-200, for the good of the service in lieu of trial by court-martial.  He did not submit a statement in his own behalf.  On the same day, he was medically cleared for separation.

On 20 April 1972, the separation authority approved the applicant’s discharge with a UD.

On 19 May 1972, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial, with a UD.  He had 2 years and 18 days of creditable service and 273 days of lost time due to being AWOL.  The highest pay grade he attained was E-4.

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 a UD.

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 this requirement.

2.  The Board notes the applicant had legitimate orders transferring him from duties in the RVN to duties in Europe in June 1971.  He failed to report to Fort Dix for further assignment to Europe.  His claim of an “officer” telling him to wait at home for orders and that he did not know what to do is not supported by any creditable evidence and is not a convincing argument to explain AWOL in excess of 270 days.

3.  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. 

4.  Therefore, the type of discharge directed and the reason for discharge were appropriate considering the facts of the case.

5.  Further, the applicant’s prior acts of misconduct provide no basis to grant relief in his case based on his overall period of service, to include service in the RVN.

6.  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

___rvo __  __emw__  __dph___  DENY APPLICATION

Carl W. S. Chun
Director, Army Boards for Correction
of Military Records

INDEX

CASE ID	AR2000035623	
SUFFIX		
RECON		
DATE BOARDED	20000928	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19720519	
DISCHARGE AUTHORITY	AR 635-200 Chapter 10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A01.13	
2.	A92.17	
3.	A92.24	
4.	A92.31	
5.		
6.