MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:

	BOARD DATE:           13 April 2000
	DOCKET NUMBER:   AR2000035662

	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.

	Ms. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Fred Eichorn		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Ms. Sherri V. Ward		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 (HD).

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

On 19 June 1967 he was inducted into the U.S. Army for a period of 2 years.  He successfully completed basic combat training at Fort Dix, New Jersey and advanced individual training (AIT) at Fort Jackson, South Carolina, in military occupational specialty (MOS) 11B (Infantryman).  Upon completion of AIT, he was assigned to the Republic of South Vietnam as a machine gunner. 

The applicant’s record documents that the highest permanent rank he held on active duty was specialist/E-4.  He is in receipt of the Combat Infantryman Badge, the Vietnam Service Medal, the Vietnam Campaign Medal, and the National Defense Service Medal.  

On 27 June 1968 he was convicted by special court-martial (SPCM) for violation of the UCMJ, Article 86, missing movement.  He was sentenced to confinement at hard labor for 3 months (suspended for 3 months).

On 28 June 1968 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for operating a ¾ ton truck over the speed limit.  The punishment consisted of forfeiture of $16.

On 3 October 1968 he accepted an NJP for being AWOL (9-18 September 1968).  The punishment consisted of forfeiture of $55 per month for two months and 45 days extra duty.

On 10 November 1968 he departed Vietnam in casual status en route to Fort Campbell, Kentucky.

On 22 December 1968 he departed AWOL.  He was dropped from the roles (DFR) as a deserter on 13 January 1969.  He returned to military control on 4 April 1969.

On 23 April 1969 he was convicted by special court-martial (SPCM) for violation of the UCMJ, Article 86, AWOL.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $73 per month for 6 months.

He was assigned to the Confinement Training Facility, Fort Riley, Kansas, on 5 May 1969.  

On 1 July 1969 he departed Fort Riley, Kansas, in casual status, en route to Fort Knox, Kentucky.

On 2 July 1969 he departed AWOL.  On 8 December 1969 the Commanding General, Fort Riley, Kansas, was notified by the FBI that the applicant had been arrested by civilian authorities.  He was returned to military authorities on 16 April 1970.

On 20 April 1970 the applicant was charged with AWOL under the provisions of Article 86, UCMJ.  He acknowledged notification of the charges, and after legal consultation, he requested discharge in lieu of court-martial under the provisions of Chapter 10, AR 635-200.  He indicated that while in AWOL status he had been arrested and convicted of two felonies and sentenced to 3 years probation.   

On 1 May 1970 the appropriate authority approved his discharge and ordered him separated with an Undesirable Discharge Certificate (DD Form 258A).  Accordingly, on 8 May 1970 the applicant was discharged with a characterization of service of under other than honorable conditions.  He was credited with 1 year, 6 months, and 11 days active military service and 496 days lost time.

Army Regulation 635-200, then in effect, sets forth 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 UD is normally considered appropriate. 

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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 discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant’s overall record of military service.  

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.  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.

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

___fe___  ___cla___  ___svw___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR2000035662	
SUFFIX		
RECON		
DATE BOARDED	20000413	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19700408	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	7100	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  9217		
 2.  0100		
 3.  9500		
 4.		
 5.		
 6.