MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:           2 October 2003      
		DOCKET NUMBER:  AR2003088643

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. Lester Echols		Member	
	Mr. John T. Meixell		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 general discharge be upgraded to honorable.

APPLICANT STATES:  In effect, that he feels the Army mistreated him.  He contends that he should not have been ordered to go to Vietnam because he had just gotten married, that he had a daughter, and that his brother was in Vietnam and had been wounded.  He contends that he did everything he could not to go to Vietnam and even volunteered for school on two occasions.  He goes on to state that he went to Vietnam even though he was not willing and that he was so angry and afraid that he was willing to do anything to stay out of Vietnam.  He contends that he turned to drugs, got addicted to drugs and eventually lost everything.  He further contends that he appreciates the discharge upgrade which allows him entitlement to Department of the Veterans Affairs (DVA) benefits; however, he needs some leniency and forgiveness and a discharge that is fair.  In support of his application, he submits VA Form 21-4138 (Statement in Support of Claim), dated 17 March 2003; and two character reference letters.  

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

The applicant was inducted in the Army of the United States on 13 March 1968 and was honorably discharged on 17 March 1968 for immediate enlistment in the Regular Army.  He enlisted in the Regular Army on 18 March 1968 for a period of 3 years.  He successfully completed basic combat training and advanced individual training and was transferred to Germany for duty as an auto repairman. On 20 November 1968, the applicant was honorably discharged for immediate reenlistment.  He reenlisted on 21 November 1968 for a period of 4 years.   

On 19 October 1970, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 9 October 1970 to 16 October 1970. His punishment consisted of a reduction to specialist four (suspended for 
30 days) and a forfeiture of pay.

On 21 January 1971, nonjudicial punishment was imposed against the applicant for missing movement.  His punishment consisted of a forfeiture of pay and restriction.

On 10 May 1971, nonjudicial punishment was imposed against the applicant for possessing marijuana.  His punishment consisted of a reduction to specialist four (suspended for 60 days).

The applicant went AWOL on 7 January 1972 and returned to military control on 10 January 1972.  He went AWOL on 18 January 1972 and returned to military control on 14 February 1972.  He went AWOL again on 10 March 1972 and returned to military control on 20 April 1972.  Charges were preferred against the applicant for the AWOL periods and trial by special court-martial was recommended.

On 26 April 1972, after consulting with counsel, the applicant 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 indicated in his request that he that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the DVA and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  Additionally, he elected not to submit a statement in his own behalf.

The separation authority’s action is not contained in the available records.  However, the available records contain orders which show the applicant was discharged on 8 June 1972 with a discharge under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served 4 years and 14 days of creditable service with 72 days of lost time due to AWOL.

In 1977, the applicant’s discharge was upgraded to under honorable conditions under the Special Discharge Review Program (SDRP).  The Army Discharge Review Board affirmed the upgraded discharge on 20 April 1978.  

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. 

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 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.

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

3.  The Board considered the applicant’s contention that he needs a fair discharge.  However, the governing regulation states that a discharge under other than honorable conditions is normally considered appropriate.  The Board notes that the applicant’s discharge was upgraded to a general discharge by the SDRP in 1977 and his discharge was affirmed in 1978.  

4.  The Board reviewed the applicant’s record of service which included three nonjudicial punishments and 72 days of lost time and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.  

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

KAN____  LE______  JTM_____  DENY APPLICATION

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

INDEX

CASE ID	AR2003088643	
SUFFIX		
RECON		
DATE BOARDED	20031002	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19720608	
DISCHARGE AUTHORITY	AR 635-200 Chapter 10	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.