MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  11 September 2001
	DOCKET NUMBER:  AR2001057306

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Donald P. Hupman		Member	
	Mr. Curtis L. Greenway		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 discharge under other than honorable conditions be upgraded to a general discharge.

APPLICANT STATES:  That he served in Vietnam and received an honorable discharge from his first period of service.

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

He was inducted at almost 26 years of age and entered active duty on 5 July 1967.  He completed infantry training and was assigned to Vietnam from 7 December 1967 to 7 December 1968.  He was awarded the Combat Infantryman Badge, the Air Medal, and the Bronze Star Medal for meritorious service.  On 21 May 1969, he was honorably discharged in the pay grade of E-5 for the purpose of reenlistment.

The applicant reenlisted for 6 years at Fort Carson, Colorado on 22 May 1969.  On 27 October 1969, he was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for five specifications of absence from his place of duty.  On 8 May and 29 September 1970, he was again punished under Article 15, UCMJ for absence from his place of duty.  The imposed punishment included reduction to the pay grade of E-4.  The record shows that the applicant was absent without leave (AWOL) from 25 July to 9 August 1970, but there is no recorded disciplinary action in the available record.

On 13 January 1971, the applicant was again punished under Article 15, UCMJ for 2 days AWOL.  The imposed punishment included reduction to the pay grade of E-3.  He was AWOL again for 30 days from the overseas replacement station and was punished under Article 15, UCMJ on 9 April 1971.  He served again in Vietnam from 10 April 1971 to 16 January 1972.  Upon his return from Vietnam he was AWOL for 42 days and was punished under Article 15, UCMJ on 19 May 1972.

The applicant was AWOL again from 30 May to 3 December 1972.  A 6 December 1972 FBI deserter report states that the applicant surrendered to military authorities after the FBI visited his residence.  Charges were preferred on the applicant for his 189 days AWOL on 7 December 1972.

After consulting with counsel, the applicant submitted a request for discharge in lieu of trial by court-martial.  In his request he acknowledged the possible effects of an undesirable discharge and that he might be deprived of many or all Army and Veterans Administration benefits.  In an attached statement, the applicant wrote that he was unhappy with the Army now and all the changes since 1967.  He was proud of his Vietnam service and should receive a better discharge.  The applicant’s chain of command recommended approval of his request and issuance of a undesirable discharge based of his frequent and lengthy absences.
On 16 January 1973, the separation authority, a major general, approved the request for discharge and directed issuance of an Undesirable Discharge Certificate.  Effective 13 February 1973, the applicant was separated from active duty in the pay grade of E-1 under the authority of Army Regulation 635-200, in lieu of trial by court-martial.  He had 2 years, 10 months, and 21 days creditable service during this enlistment and 301 days lost time.

There is no evidence of record that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the established 15-year time limit.

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.

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 request for a discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2.  The Board recognizes the applicant’s Vietnam service with awards of the Combat Infantryman Badge, the Air Medal, the Bronze Star Medal for meritorious service, and his prior honorable discharge.  The Board also notes that the applicant was 29 years of age at the time of his first AWOL.  In view of the applicant's numerous acts of indiscipline, it does not appear that his discharge under other than honorable conditions was too severe.

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

___ca___  __dh____  ___cg___  DENY APPLICATION

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

INDEX

CASE ID	AR2001057306	
SUFFIX		
RECON		
DATE BOARDED	20010911	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.