MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 February 2002
	DOCKET NUMBER:   A2001062159

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Jo Ann H. Langston		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		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:  In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that the President gave amnesty to Vietnam veterans with bad discharges and he never received a review under this program.  He indicates that he has no evidence to support his request and only wants the truth told before a review board. 

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

On 17 April 1970, he enlisted in the Regular Army for 3 years.  He successfully completed training and was awarded military occupational specialty (MOS) 
72C (Switchboard Operator).  

The applicant record shows that the highest rank he attained while serving on active duty was private first class/E-3 and it documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does show that he earned the following awards during his active duty tenure:  Vietnam Service Medal with 2 bronze service stars; Republic of Vietnam Campaign Medal with 60 Device; and National Defense Service Medal.

The applicant’s service record does contain an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on the following two occasions for the offenses indicated:  25 January 1971, for being absent without leave (AWOL) from 18 to 24 January 1971; and 4 June 1971, for being derelict in the performance of his duties as a switchboard operator.

On 27 December 1971, court-martial charges were preferred against the applicant for the following offenses:  two specifications of being AWOL from his appointed place of duty, disobeying a lawful order issued by a superior 
non-commissioned officer, discharging three rounds from a 45 caliber pistol, sleeping on his post during a yellow alert condition, wrongfully discharging a firearm with an intent to endanger a human life, communicating a threat to a commissioned officer, and twice communicating a threat to a warrant officer.  

On 31 December 1971, after consulting with legal counsel and being advised of the basis for the contemplated trial by court-martial, the maximum allowable punishment, and the possible effects of an UOTHC discharge, the applicant voluntarily requested to be discharged for the good of the service/in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.

On 23 January 1972, the appropriate authority approved the applicant’s discharge request and directed that he receive an UD and that he be reduced to the lowest enlisted grade. 

On 1 February 1972, the applicant was discharged accordingly.  At the time of his discharge, he had completed 1 year, 9 months, and 9 days of creditable active military service and he had accrued 6 days of time lost due to AWOL. 

On 11 March 1988, the Army Discharge Review Board determined that the applicant’s UD was proper and equitable and denied his request for an upgrade to his discharge.

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 the applicant’s contention that he was never given a fair review of his discharge; however, it finds insufficient evidence to support this claim.  The evidence of record shows that the applicant was charged with the commission of multiple offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  After consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.  

2.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It also notes that the characterization of service for this type of discharge is normally UOTHC and that the applicant was aware of that prior to requesting discharge.  

3.  Finally, the Board notes that the applicant chose to request an administrative discharge rather than risk the consequences of a court-martial and it finds that his discharge accurately reflects his overall record of service. 

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

__JHL__   _ _RJW__  __RTD     DENY APPLICATION

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

INDEX

CASE ID	AR2001062519	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/02/26	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19720201	
DISCHARGE AUTHORITY	AR635-200.  .  .  .  .  	
DISCHARGE REASON	In Lieu of Trial By CM	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	70.000	
2.		
3.		
4.		
5.		
6.