MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 December 2000
	DOCKET NUMBER:   AR2000042439

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Harry B. Oberg		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 be upgraded to an honorable or a general discharge.

APPLICANT STATES:  That he served for more than 1 year and was honorably discharged.  He states, in effect, that he reenlisted in the Army and served in Vietnam for over 7 months.  He further states that he should not have to carry the stigma of an undesirable discharge for the rest of his life.  He goes on to state that his punishment was too severe because he had only a few days of lost time and minor misconduct.  In support of his appeal he submits letters dated 27 October 1999, 15 December 1999 and 19 January 2000 from associates attesting to his good character and post-service conduct.  He also submits a copy of a Certificate of Merit dated 27 October 1998 as recognition of service and commitment toward improving the lives of people with Acquired Immune Deficiency Syndrome (AIDS).

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

On 20 March 1969, he enlisted in the Army for 3 years in the pay grade of E-1 at Fort Jackson, South Carolina.  He successfully completed his training as a supply clerk.  He was promoted to the pay grade of E-2 on 20 July 1969 and to E-3 on 16 January 1970.

He was honorably discharged on 7 June 1970, for the purpose of immediate reenlistment.  He had completed 1 year, 2 months and 19 days of total active service.

On 7 June 1970, the applicant reenlisted in the Army for 3 years and he was transferred to the Vietnam on 15 July 1970.

Nonjudicial punishment (NJP) was imposed against the applicant on 15 August 1970 for sleeping on duty.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

On 22 December 1970, NJP was imposed against him for being AWOL from 4 December until 8 December 1970.  His punishment consisted of a forfeiture of pay.

On 23 January 1971, NJP was imposed against him for failure to be at his appointed place of duty once on 11 January 1971, twice on 12 January 1971 and once again on 13 January 1971.  His punishment consisted of a reduction in pay grade and a forfeiture of pay.

The records also show that the applicant communicated a threat against two officers and was drunk on duty.

The facts and circumstances pertaining to the applicant's discharge are not on file.  The Report of Transfer or Discharge, DD Form 214, indicates that the applicant was discharged on 3 March 1971, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 1 year, 11 months and 9 days of total active service.  He was furnished an Undesirable Discharge Certificate.

On 22 July 1977, the Army Discharge Review Board denied the applicant’s request for an upgrade 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 an undesirable discharge.

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 type of discharge directed and the reasons therefor appear to have been appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However the applicant had NJP imposed against him three times for his acts of misconduct.  He also communicated a threat to two officers and was drunk on duty.  His request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the 
court-martial and the punitive discharge that he might have received.

4.  In view of his numerous acts of misconduct, it does not appear that his undesirable discharge was too severe and in the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

5.  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 ____  ___lem__  ___hbo__  DENY APPLICATION

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

INDEX

CASE ID	AR2000042439	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/12/12	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19710303	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  661	144.6700	
2.  672	144.6750	
3.		
4.		
5.		
6.