MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 February 2001                   
	DOCKET NUMBER:   AR2000048232

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Donald P. Hupman, 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 changed to a medical discharge and that his birth date be changed to 7 August 1952.

APPLICANT STATES:  That he was only 16 years old when he entered the Army and did not understand military laws.  Plus, he was using drugs and alcohol while he was in the Army.  He finished his tour in Vietnam.  He only needed a few days to complete his service obligation.  He provides two VA bills for treatment rendered as supporting evidence.

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

He enlisted in the Regular Army on 8 January 1970 for 3 years.  His Enlistment Contract – Armed Forces of the United States, DD Form 4, shows that his birth date was 4 April 1951.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 67N (UH-1 Helicopter Repairman).

On 4 May 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for absenting himself from his place of duty.

On 24 August 1970, the applicant accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) from his unit, to wit: the Overseas Replacement Station, Oakland Army Base, Oakland, CA from 16 – 20 August 1970.

The applicant arrived in Vietnam on or about 30 August 1970 and was assigned to the 159th Medical Detachment as a 67N helicopter mechanic.  He received an Enlisted Efficiency Report for the period August 1970 through May 1971.  He was rated as below average in all six categories of characteristics and was given an advancement potential of “not promote EM.”  Comments included “…assigned this man numerous duties, none of which he has performed in a satisfactory manner.  His failure to accomplish assigned tasks reflect a negative attitude toward his superiors and the United States Army…is definitely not an asset to this unit.”  He departed Vietnam on 24 August 1971.  His conduct and efficiency were rated as “fair.”

On 17 December 1971, the applicant was convicted by a special court-martial of being AWOL from 1 November to 2 December 1971.  He was sentenced to confinement at hard labor for 90 days and to be reduced to pay grade E-1.

On 10 October 1972, court-martial charges were preferred against the applicant charging him with AWOL for the period 12 February to 9 October 1972. 

On 24 October 1972, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement in his own behalf.

On 26 October 1972, the applicant completed a separation physical examination and was found qualified for separation.  On his Report of Medical History,         SF Form 93, the applicant indicated that his health was “good” and that he was suffering from no medical problems.

On 26 October 1972, the applicant’s company commander recommended approval of his request.  He noted that the applicant’s extensive AWOL period was a direct result of a personal problem stemming from illness in his immediate family.  The Army had offered him leave and started the paperwork for a hardship discharge or compassionate reassignment.  The applicant ignored those efforts.

On 26 October 1972, the applicant’s battalion commander recommended approval of his request.  He noted that the applicant went AWOL while his request for a compassionate reassignment was pending.  Since his return he indicated his unwillingness to cooperate in his company’s efforts to ameliorate his family problems and his negative attitude toward the Army indicated that his response to a rehabilitative transfer would be counterproductive.

On 3 November 1972, the appropriate authority approved the request and directed that the applicant receive an Undesirable Discharge Certificate.

On 20 December 1972, the applicant was discharged with an undesirable, discharge under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  His Report of Transfer or Discharge, DD Form 214, shows that he completed 2 years, 3 months and 17 days of creditable active service.  Although his DD Form 214 shows that he had 240 days of lost time, his DD Form 214 was prepared based upon temporary records and reflected only his last AWOL period.  His total lost time was actually 275 days.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.
In pertinent part, it states that an enlisted soldier may not be referred for physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

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 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.

3.  The applicant does not provide his birth certificate in support of his application.  However, if his birth date was actually 7 August 1952 he was         17 years and 5 months old at the time of his enlistment, an age at which many young soldiers entered the Army and successfully and honorably completed their enlistments.  The Board notes that the applicant successfully completed basic combat training and advanced individual training and knew what the Army laws and regulations were concerning misconduct, especially after accepting NJP on two occasions.  The Board also notes that his service in Vietnam was not exemplary.  In addition, he was not within days of completing his 3-year enlistment at his discharge.  His DD Form 214 shows that he was over 8 months shy of completing his enlistment.  Given his additional 35 days of lost time not listed on his DD Form 214, he was actually over 9 months shy of completing it.

4.  The Board notes that the applicant indicated on his SF Form 93 that he was in good health and had no medical problems.  In addition, due to the type of discharge under which he was processed he was not eligible to be considered for physical disability processing.

5.  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

__jl____  __gdp___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2000048232	
SUFFIX		
RECON		
DATE BOARDED	20010208	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19721220	
DISCHARGE AUTHORITY	AR 635-200, ch 10 	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.