MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 October 2003                  
	DOCKET NUMBER:   AR2003085413

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur A. Omartian		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 be upgraded.

APPLICANT STATES:  That after serving in Vietnam, he got married and his wife became very ill.  He states that he did a foolish thing and stayed with her instead of returning to his unit.  He feels that he did not get any support from his command with his problems.  He states that he now is diagnosed with type II diabetes and multiple myelomas due to Agent Orange exposure in Vietnam.

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

He entered active duty on 23 December 1969, completed training, and served in Germany without incident.  He reenlisted on 2 February 1971 and is shown to have served in Vietnam from 7 June 1971 through 6 June 1972.

A DA Form 268 (Report of Suspension of Favorable Personnel Actions) reports that he was AWOL (absent without leave) on 1 December 1971.  

The DA Form 20 shows that he was AWOL from 29 November 1971 to 16 January 1972 and in pretrial confinement from 20 January 1972 to 6 March 1972.  

A 13 March 1972 special court-martial found him guilty of being AWOL from 1 December 1971 through 16 January 1972.  He was sentenced to confinement for five Months, forfeiture of $188.00 per month for six months, and to be reduced to private (E-1).

On 12 February 1973 he was charged with being AWOL from 31 March 1972 through 10 February 1973.  

On 13 February 1973, after consulting with counsel and being advised of his rights and options, he submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulations 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an undesirable discharge which would deprive him of many or all of his benefits as a veteran and he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.  

He submitted a statement on his own behalf in which he states he had previously been court-martialed for being AWOL.  He states that following the court-martial he had only his dress uniform to wear and was forced to do menial work in it.  He stated that when he was told he would be going to the field in it, he went AWOL again.  He also stated that his wife was having “female problems”.  

The discharge authority approved his request and directed that he be given an undesirable discharge certificate.

He was discharged on 7 March 1973 with an under other than honorable conditions characterization of service.  

His DD Form 214 (Report of Transfer or Discharge) indicates that he was separated on temporary records.  All entries at item 22 (Statement of Service) are marked not verified.  Item 24 (Decorations) and 25 (Education) are marked unk (unknown).  Item 26a (non-pay periods time lost) lists 31 March 1972 through 11 February 1973 and “other lost time not verified”.  Item 30 (Remarks) shows 308 days lost.

From the available records, the staff of the Board calculates this period of creditable service as 1 year, 1 month, and 9 days with 405 days lost.

His DA Form 20 (Enlisted Qualification Record) shows he served in Germany as an 13D((Field Artillery Rocket Crewman).  His service in Vietnam (from 7 June 1971 through 6 June 1972) is shown as an 11B (light weapons infantryman).  The form lists his decorations as the National Defense Service Medal, the Vietnam Service Medal, and the Expert Badge with Rifle Bar.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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.

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

2.  The Board notes his prior honorable service and his service in Vietnam.  However, in light of his two extended periods of AWOL, there is insufficient evidence of mitigating factors to support an upgrade of his discharge.

3.  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.

4.  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___  ____MKP  __AAO__  DENY APPLICATION

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

INDEX

CASE ID	AR2003085413	
SUFFIX		
RECON		
DATE BOARDED	20031023	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144	
2.		
3.		
4.		
5.		
6.