MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 October 2001                  
	DOCKET NUMBER:   AR2001058883

	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:

	Ms. Joann Langston		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Jose A. Martinez		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 discharge be upgraded to a general under honorable conditions discharge and that his rank be restored to sergeant (SGT)/pay grade E-5.

APPLICANT STATES:  That he served honorably to include his tour in Vietnam.  He states that he was totally “burned” by the U.S. Army after his “antiwar” sentiments and incidents at Fort Bragg, North Carolina.  

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

The applicant was enlisted in the Army on 19 November 1970, completed training as a tractor operator, and served in Vietnam from 23 October 1971 through 17 August 1972.  

The applicant received nonjudicial punishment for being AWOL from 15 December 1972 to 3 January 1973.  His punishment consisted of reduction to specialist four and forfeiture of $150.00 pay per month for two months.  His records show he was AWOL again from 24 April 1973 to 18 September 1973.

Charges were preferred against the applicant for one period of AWOL; however, his Charge Sheet is not in his records.  In the unit commander’s recommendation, he states that the applicant was pending trial for one period of AWOL for a total of 148 days.  The unit commander recommended approval of the applicant’s request for discharge for the good of the service.  The applicant submitted a statement in his own behalf.

The applicant’s complete facts and circumstances pertaining to his discharge proceedings are not present in his records.  However, his DD Form 214 (Report of Transfer or Discharge) indicates that he was discharged on 26 October 1973, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and was issued an under other than honorable conditions discharge.  He had 2 years, 5 months and 24 days of creditable service with 168 days of lost time due to AWOL.

There is no indication that the applicant applied to the Army Discharge Review Board 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 Board notes that the applicant’s complete discharge processing papers are not in his records.  However, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

2.  The Board considered the applicant’s contentions that he served honorably; however, his records show that he received nonjudicial punishment and was AWOL for a total of 168 days after returning from Vietnam.  

3.  The type of discharge directed and the reasons for his discharge were appropriate considering all the facts of the case.  Therefore, there is no basis for upgrading the applicant’s discharge or restoring his rank to SGT.

4.  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.

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______  MDM_____  JAM_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001058883	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011011	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19731026	
DISCHARGE AUTHORITY	AR635-200,chapter 10	
DISCHARGE REASON	For the Good of the Service	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.		
3.		
4.		
5.		
6.