MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 August 2002
	DOCKET NUMBER:   AR2002068225

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Ms. Paula Mokulis		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 discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES:  In effect, that he believes his discharge was too harsh; that he had just returned from his third [second] tour in Vietnam when he departed his unit absent without leave (AWOL); and that prior to going AWOL, he had been a good soldier.  

In support of his application, the applicant submitted copies of his honorable discharges, DA Form 20 (Enlisted Qualification Record), Immunization records, and a letter to his congressman requesting help in getting his discharge upgraded.

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

The applicant enlisted in the Regular Army on 26 April 1967 for a period of 3 years.  Following completion of all military training, he was awarded military occupational specialty (MOS) 12B, Combat Engineer, and was assigned to Europe.

On 23 June 1967, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being drunk in public while in uniform.  His punishment consisted of forfeiture of $20.00 pay for 1 month.

On 7 March 1968, the applicant was honorably separated to immediately reenlist.  He was credited with 10 months and 11 days of creditable military service.  On 8 March 1968, he reenlisted for a period of 3 years.

On 14 October 1968, the applicant was promoted to Specialist/E-4 and was awarded MOS 05B, Radio Operator, as his primary MOS.

On 28 September 1970, the applicant accepted NJP for sleeping on his post as a sentinel.  His punishment consisted of reduction to PFC/E-3.

On 26 October 1970, the applicant was honorably separated to immediately reenlist.  He was credited with 3 years, 6 months, and 2 days of honorable military service and 12 months of Vietnam service from 15 January 1969 thru 14 January 1970.  On 27 October 1970, at Fort Stewart, Georgia, the applicant reenlisted for a period of 6 years and his current duty assignment.  

On 30 November 1970, the applicant was assigned to the United States Army Pacific.  On 25 January 1971, the applicant was assigned to Headquarters and Headquarters Company, 101st Aviation Group (Airmobile), USARPAC.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he served his second tour of duty in Vietnam from 8 January 1971 thru 16 June 1971.  However, his DA Form 20 shows he was assigned to Headquarters and Headquarters Company, 4th Battalion, 63rd Armor, Fort Riley, Kansas on 17 May 1971 and that he departed AWOL from the 63rd Armor at Fort Riley.  The apprehension paperwork and charge sheet supports he was assigned to Fort Riley when he went AWOL.

The applicant indicates in a letter to his congressman that he reenlisted to go to Vietnam, but returned early from Vietnam and was assigned to Fort Riley, Kansas due to his father's medical condition.

On 16 June 1971, at Fort Riley Kansas, the applicant departed his unit absent without leave (AWOL) and was dropped from the rolls on 16 July 1971.  The applicant remained absent until he returned to military control at Fort Polk, Louisiana on 27 November 1972.

On 28 November 1972, the applicant was charged with being AWOL from 16 June 1971 to 26 November 1972.  On 30 November 1972, after consulting with counsel about his rights, the applicant voluntarily and in writing, requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  The applicant stated that he was unfit to serve in the military and that he did not want to make the military a career because he could not adjust to military discipline.  The chain of command recommended approval of the applicant's request for discharge with a UOTHC discharge.

On 11 December 1972, the appropriate authority approved the applicant's request for discharge and directed issuance of a UOTHC discharge.  Accordingly, on 14 December 1972, the applicant was discharged from the Army after completing 4 years, 3 months, and 7 days of creditable military service and accruing 499 days of lost time.  

AR 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 UOTHC discharge is normally considered appropriate.  

There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

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 Board noted the applicant’s contention that his characterization of service was too harsh.  However, after careful consideration of all faithful and honorable service, to include his two tours of service in Vietnam, as well as the infraction of discipline, the extent thereof, and the seriousness of the offense, the Board determined that the applicant’s prior honorable service was not sufficiently mitigating to warrant an upgrade of his discharge.  

3.  The Board noted that 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, the applicant admitted guilt to the stipulated offenses under the UCMJ.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The Board concluded that the applicant’s administrative discharge under the provisions of chapter 10, AR 635-200 in lieu of trial by court-martial was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

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

__lls___  __pm____  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2002068225	
SUFFIX		
RECON		
DATE BOARDED	20020806	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19721214	
DISCHARGE AUTHORITY	AR 635-200, c10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.