MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 January 2001
	DOCKET NUMBER:    AR2000042540

	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. Luther L. Santiful		Chairperson	
	Mr. Thomas E. O'Shaughnessy		Member	
	Mr. Walter T. Morrison		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 the former service member’s (FSM’s) undesirable discharge (UD) be upgraded to a fully honorable discharge. 

APPLICANT STATES:  In effect, that she is the widow of the deceased FSM. She is requesting that the FSM’s discharge be upgraded so that she may be entitled to receive his veterans benefits in the form of a loan for a home and educational benefits for his two sons.  She submits social security cards for herself and for both of the FSM’s sons, a Form W2 (Wage and Tax Statement) for 1999, birth certificates for both of the FSM’s sons, a marriage certificate and two of the FSM’s Internal Revenue Tax Records for 1983 and 1984.  She also submits a DA Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) which states that the FSM was deceased at age 37 as a result of lung cancer that was caused by Agent Orange.

EVIDENCE OF RECORD:  The FSM’s military records show: 

That on 16 May 1969, he enlisted in the Regular Army for a period of 3 years and training in military occupational specialty (MOS) 71B (Clerk Typist).  On 4 June 1970, he was assigned to the Republic of Vietnam (RVN). 

On 4 July 1970, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice was imposed against the FSM for entering the troop billets with a .45 caliber revolver containing a chambered round.  His punishment included reduction from pay grade E-3 to pay grade E-2 (suspended for 3 months) and 7 days restriction and extra duty.  For unknown reasons, on 1 August 1970 the suspended portion of his punishment was vacated and he was reduced to pay grade E-2.  

On 3 October 1970, he was convicted by a special court-martial of assault upon a noncommissioned officer on 21 September 1970.  He was sentenced to perform hard labor without confinement for 30 days, restriction to the company area for
30 days and reduction from pay grade E-2 to pay grade E-1.

He was absent without leave (AWOL) from his unit from 6-9 October 1970.  A 
DA Form 261 (Report of Investigation-Line of Duty and Misconduct Status), dated 
19 October 1970, shows that he reported to the 3rd Field Hospital on 9 October 1970 suffering from drug withdrawal.  The line of duty investigation determined that he was hospitalized as a result of voluntary drug use, therefore, his hospitalization was determined to be not in the line of duty. 

He was also AWOL from 16-27 October 1970, and from 25-26 December 1970.  The available records do not show that he received any type of punishment for the two periods of AWOL during the month of October 1970.  

However, on 27 December 1970, NJP was imposed against him for being AWOL from 25-26 December 1970.  His punishment included an oral reprimand and 
14 days extra duty and restriction.

His records do not contain the facts and circumstances surrounding the discharge process.  However, an Army Discharge Review Board (ADRB), Case Report and Directive, dated 14 September 1977, shows that on an unknown date the applicant was charged with “wrongful possession of 1.8 grams of heroin and possession of 19 tabs of secobarb and emabarb.”  Because of pending court-martial charges, he was held in the RVN beyond the date that he was eligible for return from overseas. 

Further, his records 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 DD Form 214 shows that he was discharged on 13 August 1971, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with a UD.  He had completed 
2 years, 2 months, and 12 days of active military service and he had 16 days lost time due to being AWOL.

On 14 September 1977, the ADRB denied the FSM an upgrade of his discharge under the provisions of the Special Discharge Review Program (SDRP).  In May 2000, the applicant applied to the ADRB to request an upgrade of the FSM’s discharge well past that board’s 15-year statute of limitation.

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 FSM 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.  The applicant has provided no information that would indicate the contrary.   

3.  The Board considered the FSM’s entire record of service and was convinced that the reason for discharge and the characterization of service were both correct.

4.  Entitlement to veteran’s benefits is not a matter under the purview of this Board, but rests with the Department of Veterans Affairs.  

5.  Additionally, the evidence available indicates that the FSM was medically fit for retention at the time of his separation.  The available evidence does not show that he was ever exposed to Agent Orange or to any other toxic chemical.  The applicant has submitted no probative medical evidence to the contrary.

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

__lls ____  ___teo __  ____wtm_  DENY APPLICATION

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

					
INDEX

CASE ID	AR2000042540	
SUFFIX		
RECON		
DATE BOARDED	20010123	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19710813	
DISCHARGE AUTHORITY	AR 635-200, CH10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.