MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:          15 March 2001                  
	DOCKET NUMBER:  AR2000045792

	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. Carolyn G. Wade .		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher 		Chairperson	
	Mr. Richard T. Dunbar 		Member	
	Mr. Thomas E. O’Shaughnessy 		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:  The applicant requests that his undesirable discharge (UD) be upgraded.  He makes no statement in support of his request.

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

He enlisted on 15 September 1969 for 3 years.  The applicant was assigned to Fort Benning, Georgia for basic combat training (BCT) and Fort Knox, Kentucky for advanced individual training (AIT).  The applicant completed BCT and AIT with excellent ratings, was awarded military occupational specialty (MOS) 11E (Armor Crewman), and was assigned to Europe as his first permanent duty station.

The applicant arrived in Europe in April 1970, served honorably with excellent ratings, and was meritoriously promoted to private first class/E-3 shortly after his arrival.  On 24 July 1970, the applicant was meritoriously promoted to specialist/E-4.  In April 1971, the applicant volunteered for duty in the Republic of Vietnam.  He arrived in Vietnam on 9 June 1971 and continued to serve honorably with excellent ratings until mid-October 1971.  The applicant’s unit was being rotated to the United States; however, he did not have 6 months of Vietnam service and could not rotate with his unit.  At this time, he was transferred to the 101st Air Mobile Division. 

On 30 November 1971, he was convicted by a special court-martial for disobeying a lawful command.  He was sentenced to confinement at hard labor for 3 months, forfeiture of $75.00 pay per month for 3 months, and reduction to private/E-1.  Confinement over 35 days was suspended for 55 days. 

On 23 February 1972, the applicant was charged with disobeying a lawful order (on 14 February 1972) and misappropriating a government vehicle (on 21 February 1972).  Although the charge sheet does not reflect it, two other soldiers were involved in the misappropriation of the government vehicle, one of which was the driver of the vehicle.  The applicant stated in his sworn statement to the Army Discharge Review Board (ADRB) that he was resting in the rear of the supply vehicle when the driver and a companion drove the vehicle away from the camp area.  He assumed that the soldiers were going to pick up supplies; however, he realized that this was not the case after they passed the supply station.  The driver drove the vehicle about 1500 meters out from the camp and returned to camp.  They were gone 30 minutes.

On 12 March 1972, after consulting with counsel (an Infantry Officer and not a member of the Judge Advocate General Corps) about his rights, the applicant requested discharge under the provisions of chapter 10, Army Regulation 635-200.  He elected to submit a statement in his own behalf; however, it is not part of the record.  The unit and intermediate commanders recommended approval of the applicant’s request for discharge under the provisions of chapter 10 with a UD.

On 18 March 1972, the appropriate authority approved the applicant’s request for discharge with a UD.  Accordingly, on 28 March 1972, the applicant was discharged from the Army after completing 2 years, 5 months, and 13 days of creditable military service and accruing 31 days of lost time.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was credited with award of the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal with Device 1960.

Army Regulation (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.  However, at the time of the applicant's separation the regulation provided for the issuance of a UD.

On 5 June 1973, the applicant and his counsel personally appeared before the ADRB.  The ADRB denied the applicant’s request for an upgrade of his discharge.  On 7 October 1980, the applicant again personally appeared before the ADRB.  The Board again denied the applicant’s request for an upgrade of his 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 administrative discharge under the provisions of chapter 10, AR 635-200 in lieu of trial by court-martial was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  

2.  Although the Board is sympathetic to the applicant’s desire to upgrade his discharge, the Board determined that the applicant had a duty as a soldier to follow the orders/commands of his superior officers.  Furthermore, the applicant by disobeying an order or command, especially during wartime, knowingly risked a military career and diminished the quality of his service below that meriting a general or fully honorable discharge.

3.  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.

4.  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

__emw__  __rtd ____  __teo ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000045792	
SUFFIX		
RECON		
DATE BOARDED	20010315	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19720328	
DISCHARGE AUTHORITY	AR 635-200, C10	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.