MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           26 November 2002
	DOCKET NUMBER:   AR2002074024

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Hubert O. Fry		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 be upgraded to an honorable or a general discharge.

APPLICANT STATES:  That he was ill advised at a young age by his First Sergeant to sign a waiver after returning late from special leave status.  In effect, while in this status, he experienced from others no support for the war and was spit on.  He further states that he did voluntarily join his unit in the Republic of Vietnam (RVN) and also volunteered as a mechanic and a door gunner.  He adds that he served with out disciplinary action during his first period of honorable service.  Additionally, he states that he risked his life for his country on many occasions while stationed in RVN for two terms of service.  In support of his claim, he submits a copy of his DD Form 214 (Report of Transfer or Discharge) dated 29 September 1971.

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

On 28 August 1969, he enlisted in the Regular Army for 3 years.  He 
completed military training and was awarded military occupational specialty 
63B (Vehicle Mechanic).  

On 26 March 1970, the applicant accepted non-judicial punishments (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to report to sick call on 24 March 1970.  His punishment included forfeiture of $20.00 and 14 days restriction.  

On 27 April 1970, he was honorably discharged with 8 months of creditable service.  On 28 April 1970, he immediately reenlisted in the RA for 3 years.

On 30 June 1970, he was transferred to RVN for duty.  

On 18 September 1970, the applicant received a second NJP for using disrespectful language towards a non-commissioned officer on 16 September 1970.  His punishment included 14 days of restriction and extra duty and reduction to E-2, suspended for 30 days.  His records show that he was absent without leave (AWOL) on 30 April 1971.  

On 21 June 1971, he voluntarily returned to military control at the 173rd Assault Helicopter Company, RVN.  There is no evidence of record that the applicant was ever assigned duties as a door gunner.

On 20 July 1971, the applicant was charged with one specification of violation of Article 86, UCMJ, for being AWOL from 30 March to 21 June 1971.

On 9 August 1971, the applicant consulted with legal counsel and voluntarily 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.  He was advised that the offenses for which he was charged could lead to an undesirable discharge (UD).  He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UD, and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army Benefits, and that he might be ineligible for many or all benefits administered by the Veterans Administration.  He did not submit a statement in his own behalf.  The applicant’s chain of command recommended approval of the request for discharge.  

On 18 August 1971, the medical officer, after review of the applicant’s psychiatric evaluation and separation medical examinations, determined that under the retention medical standards prescribed in chapter 3, Army Regulation 40-501, that the individual was and is mentally responsible, able to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in board proceedings.

The separation authority approved the request and directed issuance of an Undesirable Discharge Certificate.  

He departed RVN on 22 September 1971 and on 29 September 1971, the applicant was separated, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial and issued an Undesirable Discharge Certificate.  He completed 
2 years, 1 month and 2 days of creditable active service, of which 14 months were served in RVN.  The applicant’s record shows that he had 70 days of lost time, however, it is not reflected on his DD Form 214. The highest pay grade he attained was E-4.

On 7 July 1977, the Army Discharge Review Board (ADRB) denied his request for upgrade of his discharge.  On 12 December 1978, the ADRB requested that he resubmit his case for an entirely new review, based upon newly published standards.  The applicant’s correspondence was returned, as undeliverable.

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 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.  Further, there is no evidence, nor does he provide any evidence to substantiate his claim, that he was ill advised during his separation processing.  

2.  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. The character of the discharge is commensurate with his overall record.

3.  The contention that he was young and had many extremely traumatic experiences in RVN, during what was possibly a difficult political time, is noted. However he demonstrated a capacity for honorable service by completion of basic training and advanced individual training and completion of approximately 
8 months of offense free 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

___SAC _  __RWA _  ___HOF _  DENY APPLICATION

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

INDEX

CASE ID	AR2002074024	
SUFFIX		
RECON		
DATE BOARDED	2002.11.26	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971.09.29	
DISCHARGE AUTHORITY	AR 635-200 	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	AR 635.200	
ISSUES         1.	A71.00	
2.		
3.		
4.		
5.		
6.