MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            21 November 2000
	DOCKET NUMBER:   AR2000042572

	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. Thomas A. Pagan		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Thomas E. Shaughnessy, Jr.		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:  In effect, that he had served 18 months in Vietnam and was awaiting another 6-month tour in Vietnam when he was severely and permanently injured in an automobile accident while on leave in the United States.  He goes on to state that his injuries were so severe and disabling that he required many months of hospitalization and he believed that his injuries made him unfit for further military service and he thought his medical providers had communicated his health status to his family and the appropriate military authorities.  He further states that approximately 2 years after his injury, he voluntarily reported to the local law enforcement center to meet with military authorities when asked to do so by a police officer and he was detained and taken to Fort Bragg, North Carolina.  He also states that after being charged with being absent without leave (AWOL) his lawyer presented him with papers that he understood would allow his release from confinement.  He continues by stating that he knows that he should not have signed the papers and should have instead stood trial by court-martial but he wanted the experiences of the past 5 years behind him as soon as possible.  He did not realize how important it would be for his discharge to be honorable in order to receive veteran’s benefits; therefore, he desires his discharge upgraded to reflect his honorable service and his sense of duty to his country and the uniform he wore so proudly.

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

He was inducted in Raleigh, North Carolina on 6 March 1969 and underwent his basic training at Fort Bragg, North Carolina.  He was then transferred to Fort Knox, Kentucky to undergo his advanced individual training (AIT).  He completed his AIT and was transferred to Vietnam on 8 September 1969, for duty as a scout observer.

He was promoted to the pay grade of E-4 on 9 December 1969 and on 13 December 1969 he reenlisted for a period of 6 years , duty as an aircraft maintenance specialist, and a 30-day reenlistment leave.  He was then transferred to an aviation unit on 2 February 1970 for duty as a helicopter repairman.  His reenlistment contract indicates that he was married with two dependents at the time. 

On 8 March 1970 nonjudicial punishment (NJP) was imposed against him for sleeping on his guard post during the performance of his duties as a sentinel.  His punishment consisted of a forfeiture of pay, reduction to the pay grade of E-3 (suspended), extra duty and restriction.

Although the specifics are not present in the available records, his records do contain orders which show that NJP was again imposed against him on 30 March and 26 May 1970 for misconduct, which resulted in a forfeiture of pay for 2 months in both instances.

He extended his tour in Vietnam in order to receive the 30-days of free leave that was being offered as an incentive for extensions in Vietnam at the time.  He took the leave on 1 September 1970 and served in Vietnam until 17 April 1971, when he was transferred to Fort Hood, Texas. 

On 23 July 1971 he went AWOL and remained absent until he was returned to military control at Fort Bragg on 14 September 1971.

On 27 September 1971 he again went AWOL and remained absent until he was apprehended by civil authorities on 20 December 1973.  He was returned to military control at Fort Bragg and charges were preferred against him on 27 December 1973.

After consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial on 29 December 1973.  He indicated in his request that he had not been coerced by anyone to submit such a request and that he understood the consequences of submitting such a request and was aware that a discharge under other than honorable conditions might deprive him of benefits under State and Federal laws.  He also elected to submit a statement in his own behalf whereas he asserted that he wanted out of the Army because he could not get the way of the new Army and that if he were not discharged he would continue to go AWOL until he got out.

He underwent a mental status evaluation, medical and physical examination on 2 January 1974 and was cleared for separation or any action deemed appropriate by the commander.

The applicant’s commander interviewed the applicant on 9 January 1974 and the applicant told him that he was fed up and just could not get with the new Army, that he desired to leave the Army permanently, and that he would go AWOL until he was released.

The Corps Support Command (COSCOM) commander (a colonel) interviewed the applicant on 11 January 1974 and indicated that the applicant informed him that after returning from Vietnam he was stationed at Fort Hood and his wife encountered financial difficulties and he went AWOL for 57 days.  He returned to Fort Bragg and while awaiting processing he went AWOL again.  He claimed that he was in an automobile accident and was hospitalized for a year but made no effort during or after his hospitalization to contact military authorities.  He (the applicant) indicated that he wanted nothing more to do with the Army and would continue to go AWOL if returned to duty.
The appropriate authority approved the request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 13 February 1974 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 served 2 years, 6 months and 11 days of total active service and had 868 days of lost time due to AWOL.

There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board for and 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 have been noted by the Board.  However, they are not supported by either the evidence submitted with his application or the evidence of record.  It is also noted that if in fact the applicant was involved in an automobile accident and was hospitalized, it occurred when he was in an AWOL status and therefore would not be considered in the line of duty or entitled to benefits for treatment to injuries that resulted during his period of misconduct.  While the Board will concede that it is possible, it appears that he had no intentions of returning to military control, given the extensive length of his absence.  Therefore, his contentions are not sufficiently mitigating when compared to the seriousness of his offenses and the extensive period of his absences during such a short period of service.

5.  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.

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

___ts ___  ___ra ___  ____tap _  DENY APPLICATION

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

INDEX

CASE ID	AR2000042572	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/11/21	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/02/13	
DISCHARGE AUTHORITY	AR635-200/ch10 	
DISCHARGE REASON	Gd of svc	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.