MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:          13 August 2002                   
	DOCKET NUMBER:  AR2002073758

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Lana E. McGlynn		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 all of his problems were the fault of the Army for not sending him to Vietnam for a second tour.

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

During the period 26 July 1966 to 28 May 1968, the applicant served on active duty in the Regular Army.  His military occupational specialty was 36C (Lineman).

On 4 January 1967, he was administered nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) for the period 22 to 31 December 1966.  His punishment included a forfeiture of $40 pay per month for 2 months, extra duty and restriction.

He served in Vietnam from 4 April 1967 to 28 March 1968.

On 5 August 1967, he was administered NJP for being AWOL on 30 July 1967 and for disobeying a lawful order on 2 August 1967.  His punishment included a reduction to pay grade E-2, a forfeiture of $15 pay and extra duty

On 29 May 1968, the applicant reenlisted in pay grade E-3 and with a waiver for lost time.

On 12 April 1969, he was administered NJP for being AWOL for the period 1 to
6 May 1969.  His punishment included a reduction to pay grade E-3, a forfeiture of $20 pay, restriction and extra duty (suspended).

On 23 July 1969, he was convicted by a Special Court-martial of being AWOL for the period 6 to 20 June 1969.  His sentence included restriction for 2 months and hard labor without confinement for 90 days.

On 18 August 1969, he was administered NJP for being AWOL for the period    31 July to 17 August 1969.  His punishment included a reduction to pay grade   E-3, a forfeiture of $41 pay, restriction and extra duty.

The unit commander preferred court-martial charges against him for further of AWOL for 237 days.

On 23 April 1970, the applicant voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged that he could receive a bad conduct or dishonorable discharge; that he was guilty of the charges against him; that he had consulted with legal counsel; and, that he had no desire to perform further military service.

On 20 May 1970, a physical examination cleared him for separation.

On 1 July 1970, the appropriate separation authority approved his request, directed his reduction to pay grade E-1, and that an Undesirable Discharge Certificate be issued.

On 28 September 1970, the applicant was discharged, in pay grade E-1, with a discharge UOTHC, under the above-cited regulation.  His records indicate he had 3 years, 1 month and 20 days of creditable service and 355 days of lost time.

On 6 April 1976, the Army Discharge Review Board found his discharge to be proper and equitable and denied his request for upgrade.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good 
of the service in lieu of trial by court-martial.  At the time of the applicant’s separation, the regulation provided for the issuance of an Undesirable Discharge Certificate.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The applicant's contention that he was not allowed to return to Vietnam is not shown and not sufficiently mitigating to warrant relief.  The Board notes the applicant began his misconduct during his first period of service and continued into the second period.

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

_LEM____  _TSK___  _FNE___ DENY APPLICATION

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

INDEX

CASE ID	AR2002073758	
SUFFIX		
RECON		
DATE BOARDED	20020813	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144	
2.		
3.		
4.		
5.		
6.