MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            3 October 2000                  
	DOCKET NUMBER:   AR2000043675

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		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 under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

APPLICANT STATES:  In effect, that:  (1)  Clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge; (2)  under current standards, he would not receive the type of discharge he did; (3)  his average conduct and efficiency ratings/behavior and proficiency marks were good [or pretty good]; (4)  he received awards and decorations; (5)  he received letters of recommendation; (6)  he had combat service; (7)  he was wounded in action; (8)  his record of promotions showed he was generally a good service member; (9)  he had other acts of merit; (10)  he was so close to finishing his tour that it was unfair to give him a bad discharge; (11)  he had a prior Honorable Discharge; (12)  he has been a good citizen since discharge; and (13)  he was not kicked out of the Army, but he left for the good of the service.

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

The applicant initially served in the Army National Guard from May 1962 through October 1963.  He enlisted in the Regular Army on 17 October 1963 and completed infantry training.  Thereafter, he remained on active duty through a series of reenlistments and served twice in Vietnam and Germany.  In November 1967, he was promoted to sergeant (SGT) and was awarded the Army Commendation Medal, the Good Conduct Medal, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), and the Combat Infantryman Badge.

During the period August 1964 to August 1966, the applicant received seven nonjudicial punishments for the following offenses:  disobeying a lawful order, being drunk and disorderly, being absent from his place of duty, being incapacitated for the proper performance of his duties, and damaging military property.  He received six additional nonjudicial punishments during the period March 1968 to August 1970 for being derelict in the performance of his duties, for failing to go to his appointed place of duty, for being absent from his unit, for failing to obey a lawful general regulation, and for failing to obey a lawful order issued by a first lieutenant.

On 10 August 1970, charges were preferred against the applicant for wrongfully possessing one gram of marijuana and wrongfully introducing one gram of marijuana into a military unit.

On 15 August 1970, the applicant requested discharge under the provisions of AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He consulted with legal counsel and submitted a statement in his own behalf.  He acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all benefits administered by the VA if an undesirable discharge were issued.  The applicant underwent a separation medical examination and was found fit for separation.

On 10 September 1970, the separation authority approved the request for discharge and directed an undesirable discharge.  The applicant was discharged on 21 September 1970 under the provisions of AR 635-200, chapter 10.  He had 2 years and 24 days on his current enlistment and 7 years, 1 month and 28 days of active Federal service.  

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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.  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 law and regulations.  

2.  The character of the discharge is commensurate with the applicant's overall record of military service.  There is no indication that the request was made under coercion or duress.

3.  In view of the applicant's numerous acts of indiscipline, it does not appear that his undesirable discharge was too severe.

4.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

5.  The Board noted that the reasons provided by the applicant as a basis for upgrading his discharge; however, the Board also noted that all these matters were considered by the discharge approval authority when he directed a discharge under other than honorable conditions.
6.  The Board specifically noted the applicant’s contentions that clemency is warranted and he would not have received this type of discharge under current standards.  However, the Board also noted that the applicant requested discharge to avoid trial by court-martial and he acknowledged guilt.  Therefore, the applicant has not provided compelling evidence to show that his discharge was in error or unjust.

7.  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.

8.  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

JNS_____ RJW____  RTD____   DENY APPLICATION

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

INDEX

CASE ID	AR AR2000043675	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	200010003	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19700921	
DISCHARGE AUTHORITY	AR635-200, Chapter 10	
DISCHARGE REASON	For the Good of the Service – In Lieu of Trial by Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.