MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 July 2003
	DOCKET NUMBER:   AR2003085601

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Gail J. Wire		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Robert Duecaster		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 discharge.

APPLICANT STATES:  That at the time of his discharge he was unaware of the type of discharge he was receiving.

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

On 18 April 1966, he enlisted in the Army in Raleigh, North Carolina for 3 years in the pay grade of E-1.  He successfully completed his training as a light weapons infantryman.  He was promoted to the pay grade of E-2 on 18 August 1966 and to pay grade E-3 on 22 December 1966.

His awards include the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Parachute Badge, the Bronze Star Medal and the Army Commendation Medal.

Nonjudicial punishment (NJP) was imposed against the applicant on 28 January 1967 for willfully disobeying a lawful order.  His punishment consisted of a reduction in pay grade, restriction and extra duty.

On 22 June 1967, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 3 May 1967 until 13 June 1967.  He was sentenced to a reduction in pay grade and a forfeiture of pay.

On 3 December 1968, the applicant was convicted by a special court-martial of two specifications of failure to obey a lawful order and of being AWOL from 2 October 1968 until 26 October 1968.  He was sentenced to confinement at hard labor for 4 months, a reduction in pay grade and a forfeiture of pay.

The applicant again went AWOL on 24 August 1969 and he remained absent until he was returned to military control on 31 January 1970.

The facts and circumstances pertaining to the applicant's discharge are not on file.  The Report of Transfer or Discharge (DD Form 214) that he was furnished indicates that the applicant was discharged on 13 April 1970, under the provisions of Army Regulation 635-200 and he was furnished a separation program number of 246 (for the good of the service).  He had 3 years, 4 months and 13 days of total active service and he had approximately 223 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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.  In the absence of evidence to the contrary, it must be presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  It appears that the character of the discharge is commensurate with his overall record of service.

2.  The type of discharge directed and the reasons therefore also appear to be appropriate considering the available facts of the case.

3.  The Board has noted the applicant’s contentions.  However, although the facts and circumstances surrounding his discharge are unavailable for review, in order for him to have been discharged for the good of the service he had to have submitted a request for discharge in lieu of trial by court-martial.  He also would have been afforded the opportunity to consult with counsel to be made aware of the type of discharge he would receive and the affects of receiving a less than honorable discharge.  

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

___rd ___  ___kh___  __gw____  DENY APPLICATION

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

INDEX

CASE ID	AR2003085601	
SUFFIX		
RECON		
DATE BOARDED	2003/07/31	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/04/13	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  708	144.7100/CONDUCT TRIABLE BY CM	
2.		
3.		
4.		
5.		
6.