MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           24 October 2000     
	DOCKET NUMBER:   AR2000042875

	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. Anita L. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. John T. Meixell		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 (UD) be upgraded to honorable (HD).

APPLICANT STATES:  In effect, that he would stand and fight for his home and country at anytime; that his discharge is unjust because of the disposition of Vietnam; that when he was drafted he was proud to serve his country until he realized what Vietnam was all about and then he applied for a discharge; that he never used drugs before entering the service and that he went through rehabilitation due to drugs; that the Veterans Administration Medical Center (VAMC) in North Hills, California, sent him a letter about a chest x-ray and blood test, and issued him a VA hospital card; that it was his understanding that he was not entitled to VA benefits; and, that if he is going to be a part of a government medical experiment then he feels his discharge is unjust.

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

On 19 May 1970 the applicant was inducted into the U.S. Army for a period of
2 years.  He successfully completed basic combat training at Fort Ord, California, and was assigned to Fort Knox, Kentucky for advanced individual training (AIT) in military occupational specialty (MOS) 11B (Infantryman).  He did not complete AIT because he went absent without leave (AWOL) on two occasions.

The applicant’s record documents that the highest permanent rank he held on active duty was private/E-2 and the record contains no documented acts of valor, achievement, or service warranting special recognition.

On 16 June 1971 he was convicted by a special court-martial for violation of the Article 86, of the Uniform Code of Military Justice (UCMJ), for two periods of AWOL.  He was sentenced to confinement at hard labor for 75 days and a reduction to private/E-1.  From 5 May – 27 July 1971 the applicant was confined to the Post Stockade at Fort Ord, California.

On 28 July 1971 the unexecuted portion of the sentence to confinement at hard labor was remitted.  The applicant was then assigned to Fort Sill, Oklahoma for AIT in MOS 13A (Cannoneer). 

On 8 August 1971 the applicant departed AWOL and remained so absent until
13 September 1971.  No punishment is recorded for this offense.

On 19 November 1971 the applicant received assignment orders for Vietnam.  His reporting date was 14 December 1971 at the Overseas Replacement Station, Fort Lewis, Washington.
On 27 December 1971 the applicant departed AWOL and remained so absent until he was apprehended by civilian authorities on 5 February 1972.  He was returned to duty at Fort Dix, New Jersey.

On 24 February 1972 he voluntarily requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 for the good of the service in lieu of trial by court-martial. 

The applicant was separated on 10 April 1972 with a Department of Defense (DD) Form 258A (Undesirable Discharge) Certificate.  He was credited with
11 months and 7 days of total active military service, and 349 days lost time.

AR 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. 

The Army Discharge Review Board reviewed and denied the applicant’s request for upgrade on 24 September 1975.

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.  There is no indication that the request was made under coercion or duress.

2.  Despite the applicant’s contention that he would stand and fight for his home and country, the record indicates that when provided that opportunity he chose to go AWOL.  While the Board noted the applicant’s personal beliefs regarding the government’s role in Vietnam, these beliefs do not provide sufficient mitigation to overcome his many AWOL offenses.   

3.  The Board noted the applicant’s contention that he never used drugs prior to entering the Army, however, this contention is not supported by either evidence submitted with the application or the evidence of record.  The record shows that a moral waiver was obtained prior to the applicant’s induction into the Army.  This waiver was required, in part, due to a drug offense when the applicant was a minor.  Further, there is no indication that the applicant used drugs while in the Army.

4.  Entitlement to VA benefits is not within the purview of this Board.  The applicant should contact the VA to obtain information about programs under the administration of the VA.  

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

__MKP__  _ESC____  __JTM__  DENY APPLICATION

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

INDEX

CASE ID	AR2000042875	
SUFFIX		
RECON		
DATE BOARDED	20001024	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19720410	
DISCHARGE AUTHORITY	AR 635-200, C10	
DISCHARGE REASON	144.7100.0000	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES        1.  	144.9229.0000	
2.  	144.9317.0000	
3.  	144.0100.0000	
4.		
5.		
6.