MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 May 2000
	DOCKET NUMBER:   AR2000038910

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James M. Alward		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES:  That he was not paid his reenlistment bonus, that he tried unsuccessfully to correct the error upon his return from Germany and that the Army breached its contract.  He further states that he did not realize that he had been discharged under other than honorable conditions until he recently applied for VA benefits.

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

He enlisted in Manchester, New Hampshire on 18 April 1967 for a period of 3 years.  He was transferred to Fort Jackson, South Carolina to undergo his basic training.  He successfully completed his basic training and was transferred to Fort Gordon, Georgia to undergo his advanced individual training (AIT).  He did not complete his AIT at Fort Gordon and was transferred to Fort Leonard Wood, Missouri on 3 November 1967 to undergo AIT as a pioneer.  He completed his AIT and was transferred to Vietnam on 26 March 1968.

While in Vietnam he was awarded the Vietnam Service Medal, the Republic of Vietnam Campaign Medal and the Purple Heart.  He completed his tour in Vietnam on 24 March 1969 and was transferred to Fort Carson, Colorado.

On 30 July 1969 he reenlisted for a period of 6 years, assignment to Europe, and a variable reenlistment bonus of $3,222.00. 

Although the available records do not show any punishment imposed, they do reflect that he was reported as AWOL (due to civil confinement) from 15 September to 20 October 1969.

He was transferred to Bamberg, Germany on 5 January 1970 and nonjudicial punishment (NJP) was imposed against him on 9 September 1970 for being AWOL from 26 August to 28 August 1970.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 26 September 1970, NJP was imposed against him for being AWOL from 24 September to 25 September 1970.  His punishment consisted of a reduction to the pay grade of E-3 (suspended), a forfeiture of pay and restriction. 

On 29 March and 10 August 1971, NJP was again imposed against him for failure to go to his place of duty.  His punishment consisted of forfeiture of pay and extra duty. 

The applicant submitted a request on 26 October 1971 to receive a lump-sum payment of his variable reenlistment bonus.  He indicated that he understood that the unearned portion of his bonus would be recouped should he be separated prior to completion of his active duty commitment.   His request was approved by the Department of the Army on 13 December 1971.

On 24 November and 15 December 1971 NJP was again imposed against the applicant for failure to go to his place of duty.  His punishments consisted of a forfeiture of pay and reduction to the pay grade of E-3.

He completed his tour in Germany on 31 December 1971 with orders to report to Fort Carson.  He failed to report as ordered and was reported AWOL on 11 January 1972.  He remained absent until he surrendered to military authorities at Fort Devens, Massachusetts on 21 July 1972.  He had no funds and was provided transportation to Fort Carson where charges were preferred against him on 26 July 1972.

On 3 August 1972, after consulting with counsel, he submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He also elected to submit a statement in his own behalf whereas he indicated that he had been advised of his rights, that he was making the statement of his own free will, that he wanted out of the Army and would probably go AWOL again, that he did not believe he needed any rehabilitation, and that while he desired a better discharge, he would accept an undesirable discharge.

He also signed a two-page briefing which explained eligibility for VA benefits and recharacterization of discharges.  He indicated that he had been briefed and understood the consequences associated with the acceptance of a discharge under other than honorable conditions as well as the fact that he may be denied veterans benefits and may encounter substantial prejudice in civilian life as the result of an undesirable discharge.  He also indicated that he understood the procedures for applying to the Army Discharge Review Board (ADRB) within 15 years of separation and his right to apply to this Board. 

The battalion commander interviewed the applicant regarding the seriousness of an undesirable discharge and the loss of benefits associated with such a discharge.  He indicated that the applicant informed him that his family problems overrode that of his service to his country and that he would remain in the service if his problems were different; however, he did not desire any help in alleviating his problems.  The battalion commander opined that his poor attitude towards continued military service prohibited rehabilitation and recommended that his request be approved.

The appropriate authority (a major general) approved his request on 18 August 1972 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 1 November 1972 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 7 months, and 16 days of active service during his current enlistment and when added to his prior service, he had 4 years, 10 months, and 28 days of total active service.  He had 192 days of lost time due to AWOL.  His report of separation (DD Form 214) indicates that he was paid $1611.00 of his bonus (1/2 of entitlement) and there is no indication in the available records to show if he ever received the remainder prior to his discharge.

There is no evidence in the available records to show that he ever applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge.  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.  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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  A request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned.  Therefore, it appears that he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

4.  The applicant’s contentions that he was unaware that he would receive an undesirable discharge have been noted by the Board and appear to be without merit.  He clearly was informed and acknowledged that he was aware of not only the type of discharge he would receive but that he was aware of the consequences associated with such a discharge.

5.  Additionally, the applicant’s request for a lump sum payment of the remainder of his bonus was approved.  While the Board cannot determine whether or not he actually received it, the Board notes that the unearned portion of the bonus would have been recouped at the time of separation; therefore, it appears that if he did not receive it, it was not as a result of being unjustly denied the benefit, but more so because he went AWOL and was unavailable to receive the payment.  In any event, he had not served enough time to earn the portion of his bonus he had already received and he would have had to repay the bonus at the time of discharge.  Therefore, the Board finds that he received the portion of the bonus that he was entitled to receive and that the failure to receive the unpaid/unearned portion of the bonus was a result of his own misconduct, not a breech of conduct on the part of the Department.

6.  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.

7.  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

___cjp___  __ja____  __rvo ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038910	
SUFFIX		
RECON		
DATE BOARDED	2000/05/11	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1972/11/01	
DISCHARGE AUTHORITY	AR 635-200, CH10	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/GD OF SVC	
2.		
3.		
4.		
5.		
6.