MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           31 August 2000
	DOCKET NUMBER:   AR2000039377

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Barbara Ellis 		Member	
	Mr. Joe R. Schoeder		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 undesirable discharge (UD) be upgraded to a fully honorable discharge. 

APPLICANT STATES:  In effect, he believes that his bad conduct discharge 
(sic UD) is unjust or in error.  He submits a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for an honorable period of service from 21 October 1969-21 June 1970, four character references and a Department of Veterans Affairs (DVA) Administrative Decision in support of his request.  The applicant’s character references state that he is a devoted husband and family man.  He is a kind, dedicated Christian person who works hard in his church and in his community.  

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

That prior to the enlistment under review, the applicant served honorably in the Regular Army (RA) from 21 October 1969-21 June 1970.  He was issued a DD Form 214 which shows that the correct spelling of his last name is “..C.a..”.

On 22 June 1970, he reenlisted in the RA for a period of 3 years in his previous military occupational specialty (MOS) 11B (Light Weapons Infantryman). 

On 13 April 1970, he was assigned to the Republic of Vietnam (RVN).
He was absent without leave (AWOL) from his unit from 28 July-6 August 1970. The available records do not show that he received any type of nonjudicial punishment (NJP) as a result of this offense.

On 6 November 1970, he was convicted by a special court-martial of unlawfully striking another soldier in the head and on the shoulder on 14 October 1970 and of willfully disobeying a lawful order on 14 and 15 October 1970.  He was sentenced to confinement at hard labor for 2 months, reduction from pay grade E-3 to pay grade E-1 and forfeiture of $75.00 pay per month for 2 months.  He was in military confinement in the RVN from 9 November-21 December 1970.  

On 22 January 1971, the applicant underwent a medical examination by professionally trained personnel.  He was determined to have an antisocial personality disorder.  There was no evidence of psychosis, or overt thought disorder.  He was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.  There were no mental or physical defects present which were 

sufficient to warrant disposition through medical channels.  Further, the examining official stated that the applicant stated that he did not want to be in the service and desired to be discharged.  However, the examining official did not make a recommendation.

On 3 March 1971, he returned to the United States and was discharged.  His records do not contain the facts and circumstances surrounding the discharge process.  However, his records do contain a properly constituted DD Form 
214 (Armed Forces of the United States Report of Transfer or Discharge) that was signed by the applicant at the time of discharge.

The applicant’s DD Form 214, Item 1 (Last Name-First Name-Middle Name) shows that his last name is spelled incorrectly.  The correct spelling for his last name is “..C.a..”.  Further, the DD Form 214 shows that he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with a UD.  He had completed 8 months, and 1 day and he had 53 days lost time due to being AWOL and in confinement on the enlistment under review. He had also completed 8 months and 12 days on a prior period of enlistment. 

The undated DVA Administrative Decision document that the applicant submitted with his application shows that he applied to the DVA for veteran’s benefits.  The DVA determined that he was not eligible for benefits because he had a “dishonorable discharge”.  

There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge.  

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 available records show that the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  Although the facts and circumstances surrounding the discharge process are missing, he would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  He would have consulted with defense counsel and signed a statement indicating that he had been informed that he could receive a UD and the ramifications of receiving such a discharge.  He would have voluntarily requested discharge to avoid trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ.  The Board presumes regularity.  He has provided no information that would indicate the contrary.   

3.  The applicant appears to have chosen to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feel he made the wrong choice, he should not be allowed to change his mind at this late date.

4.  The Board took into consideration the applicant’s character references to include the fact that he has been a model citizen since being separated from active duty.  The Board commends the applicant for his accomplishments.  However, post service accomplishments alone do not provide the Board a basis upon which to grant relief.

5.  The Board considered the applicant’s entire record of service, to include his prior service, and was convinced that the reason for discharge and the characterization of service were both correct.

6.  However, Items 1 on his DD Form 214 issued on 3 March 1971, should be administratively corrected to show that the correct spelling of his last name is as it is shown on his DD For 214 issued on 21 June 1970.

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.

NOTE:  Request that the Army Review Boards Agency (ARBA), Support Division, St. Louis furnish the individual concerned a DD Form 215, (Correction to DD Form 214) to show in Item 1 that his last name is correctly spelled as it is shown on his DD Form 214 issued on 21 June 1970.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__sac___  __be____  __jrs____  DENY APPLICATION

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

						

INDEX

CASE ID	AR2000039377	
SUFFIX		
RECON		
DATE BOARDED	20000831	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19710303	
DISCHARGE AUTHORITY	AR 635-200, CH10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.