MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  9 August 2001
	DOCKET NUMBER:  AR2001056168

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Fred N. Eichorn		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 under conditions other than honorable be upgraded to general under honorable conditions.

APPLICANT STATES:  He is very proud of his country and would serve again.  
He has been deprived of his rights for 27 years.  He asks for a reprieve.  He had many years of good conduct but he broke.  He made a bad decision.

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

That he was inducted in the Army of the United States on 5 August 1966.  After completing training, he was assigned in Korea as a rifleman on 25 February 1967.  On 7 October 1967, he reenlisted for a 6 year term of service in the Regular Army.  After completing a 14 month tour in Korea, he was assigned to Fort Carson, Colorado, for the period of 9 June 1968 through approximately 
15 June 1969.  He was reassigned to Korea on 20 June 1969.  He was promoted to the rank of Sergeant (SGT) on 14 September 1969 and placed in the position of an infantry squad leader.  After completing a second tour in Korea for 
13 months, he was assigned to Fort Meade, Maryland, on 10 July 1970.

On 2 September 1970, he reenlisted for a 6 year term of service and assignment in Vietnam.  He was assigned in Vietnam on 2 November 1970 as a infantry team leader.  From 5-14 January 1971, he was evacuated as a patient through medical channels to Fitzsimmons Army Hospital in Denver, Colorado.  The reason for his evacuation is not found in the available records.  On 5 August 1971, he was assigned to the 1st Cavalry Division at Fort Hood, Texas.

Between 3 August 1967 and 17 April 1970, the applicant received punishment under Article 15, Uniform Code of Military Justice (UCMJ), on four different occasions for: driving a five ton vehicle 35 mile per hour (mph) in a 20 mph zone; possession of a false liberty pass; and twice for failure to go at the time prescribed to his appointed place of duty.  On 1 February 1972, while assigned at Fort Hood, the applicant was convicted by a special court-martial for a three hour period of Absence Without Leave (AWOL), a 4 day AWOL (6-9 December 1971), and absence from his appointed place of duty.  He was sentenced to reduction from SGT to Specialist Four (SP4), forfeiture of $235, and 60 days restriction.  The record also shows that he was AWOL from 11-18 January 1972.  On 8 February 1972, he was punished under Article 15, UCMJ, for failure to go at the time prescribed to his appointed place of duty, by reduction to Private First Class (PFC) (reduction suspended), forfeiture of $83, and 14 days restriction and extra duty.  

On 18 June 1973, the applicant was assigned as a SP4 light weapons infantryman to the 1st Armored Division in Germany.  On 27 November 1973, he was punished under Article 15, UCMJ, for missing a movement, by reduction to 

PFC (reduction suspended for 90 days).  On 30 January 1974, the suspension was vacated and the applicant was reduced to PFC.  On 23 January 1974, he was punished under Article 15, UCMJ, for 1 day AWOL, by reduction to Private, pay grade E-2 (reduction suspended for 60 days).  On 23 May 1974, he was punished under Article 15, UCMJ, for three incidents of failure to go at the prescribed time to his appointed place of duty, by forfeiture of $150.

On 23 July 1974, the applicant was charged with willfully disobeying an order from a non-commissioned officer, wrongful possession of a controlled substance (morphine), and 2 days AWOL.  The charges were supported by a Criminal Investigation Division report and four witness statements.  On 28 August 1974, the applicant requested discharge under chapter 10, Army Regulation 635-200, in lieu of trail by court-martial.  He received counsel and was advised of his rights.  His Brigade Commander recommended approval of the request and an undesirable discharge based on the applicant’s record of misconduct.  The applicant’s request was approved by the 1st Armored Division Commanding General on 7 September 1974, who directed that the applicant be discharged in the grade of Private (pay grade E-1) and be issued an undesirable discharge.  The applicant was so discharged on 21 September 1974 with a total of 8 years, 
1 month, and 1 day service and 16 days lost time.

He had been awarded a Good Conduct Medal (4 August 1969), an Expert Infantryman Badge (EIB) (26 February 1969), the Armed Forces Expeditionary Medal, the Vietnam Campaign Medal, and the Vietnam Service Medal.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 28 January 1975, the ADRB conducted a review of his record and determined that he had been properly discharged.  The ADRB again reviewed his record on 2 July 1981 and again determined that he had been properly discharged considering the circumstances.  The ADRB denied discharge upgrade in both cases.

Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10 (Discharge for the Good of the Service), states that a member who has committed an offense or offenses for which the Uniform Code of Military Justice (UCMJ) and the Manual for Court-Martial (MCM) authorize punishment which includes a punitive discharge (bad conduct or dishonorable), 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.  An undesirable discharge under other than honorable conditions is normally considered appropriate.  According to the MCM, the maximum punishment for possession of a controlled substance, violation of Article 92, is a bad conduct discharge or a dishonorable discharge, confinement for two years, and total forfeiture of all pay and allowances.

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 that the applicant’s undesirable discharge, in lieu of trial by court-martial, was proper and just.  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

__iw___  __gw______  __fe____  DENY APPLICATION

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

INDEX

CASE ID	AR2001056168	
SUFFIX		
RECON		
DATE BOARDED	20010809	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19740921	
DISCHARGE AUTHORITY	AR 635-200, Chap 10	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	110 – Discharge Documents	
2.		
3.		
4.		
5.		
6.