MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            16 SEPTEMBER 2003                  
	DOCKET NUMBER:   AR2003088388

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz		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 records be corrected by upgrading his discharge.

APPLICANT STATES:  In effect, that his discharge should be upgraded to allow him to receive Department of Veterans Affairs (VA) benefits.  He also feels that he was absent without leave (AWOL) because during his time in Vietnam he was unable to sleep because he stayed up all night on duty, and when he returned from Vietnam he could not do state side duty any more, and could not make the nine o’clock bed checks, he just wanted to be alone and out.  In support of his request the applicant submits a copy of his DD Form 214, the Department of Veterans Affairs determination that his military service did not entitle him to VA benefits, and miscellaneous letters from 1992 seeking an upgrade of his discharge.  

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

He enlisted in the Regular Army on 30 August 1968, for a period of two years.  He completed basic combat training at Fort Campbell, Kentucky, and advanced individual training at Fort Lewis, Washington.  He served in Vietnam from March to August 1969.

He was promoted to pay grade E-2 and E-3 on 8 November 1968 and 26 March 1969, respectively.

Between March 1969 and October 1969 he received four nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL), and for being disrespectful to a superior noncommissioned officer.  His punishments included forfeitures and reductions.  

On 3 April 1970, the applicant was convicted by a special court-martial of being AWOL from 17 November 1969 to 17 November 1970.  He was sentenced to confinement at hard labor for three months, reduction to E-1, and a forfeiture.

Between 5 January 1969 and 13 December 1970, the applicant was absent without leave for 253 days, under military confinement for 58 days, and under civilian confinement for 62 days.

When charges were preferred, the applicant consulted with legal counsel, and 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 was advised of his rights and indicated he understood the possible ramifications of an other than honorable conditions discharge.

On 5 January 1971, a physical examination cleared the applicant for separation.

On 4 February 1971, the appropriate separation authority approved the applicant’s request and directed the issuance of an under other than honorable conditions discharge.

On 16 February 1971, the applicant was discharged under the above cited regulation.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he had 1 year, 5 months and 9 days of creditable service, and 373 days of lost time.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  At the time of the applicant’s separation, the regulation provided for the issuance of an under other than honorable conditions discharge.  

On 25 February 1986, the Army Discharge Review Board (ADRB) denied the applicant’s request to upgrade his 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, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.

2.  The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial.  There is no evidence of an error or injustice that would warrant granting his request.

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 that 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

__FNE __  __MHM__  __KAH __  DENY APPLICATION

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

INDEX

CASE ID	AR2003088388	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030916	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.