RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            02 DECEMBER 2003  
	DOCKET NUMBER:   AR2003090573

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Patrick H. McGann, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that information contained in his records regarding an injury to his left arm and offenses associated with his administrative separation be expunged from his records.

2.  The applicant states, in effect, that he was not wounded in his left arm, that he did not use a dangerous weapon, and that he was not being disrespectful toward a noncommissioned officer.  He states that his right index finger was amputated between January and May 1969 and that he was awarded the Purple Heart for that injury.  He states that he has been receiving Department of Veterans Affairs benefits monthly and wants to have the information in his records corrected "because some of it is not right."

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  Records available to the Board indicate that the applicant had previously petitioned this Board to upgrade the character of his discharge.  The summary of the Board's proceedings (AR2002082277), which considered and denied the applicant's request on 4 March 2003, was provided to the applicant.  It appears the information contained in that summary was the basis for his current application.

2.  The March 2003 summary contained a statement that item 40 (wounds) on the applicant's Department of the Army Form 20 (Enlisted Qualification Record) indicated that he had been "wounded in the left arm on 17 March 1969."  The applicant's Department of the Army Form 20 does contain the entry "FW: (L) ARM 17Mar69."  The applicant last authenticated the information contained on his Department of the Army Form 20 in January 1969, shortly after his arrival in Vietnam.  

3.  A 20 April 1969 hospital message order, contained in the applicant's file, indicates that he was reassigned from a patient casualty company in Vietnam to the Medical Holding Company of an Army hospital in Japan in April 1969.  There were, however, no medical records available to the Board and no copy of an order indicating the applicant had been awarded the Purple Heart which could substantiate the date the applicant was wounded, or the location of the wound.

4.  The March 2003 Board summary also contained a statement that on 
28 November 1969 that court-martial charges were preferred against the applicant.  Those charges included "being disrespectful in language to his superior non-commissioned officer" and "committing assault upon his superior non-commissioned officer with a dangerous weapon, a knife."

5.  Included in the applicant's file, as part of the court-martial charges, is a statement from the noncommissioned officer, a sergeant first class, who was the subject of the applicant's actions.  The sergeant first class related in his statement that he and a staff sergeant had gone to the applicant's barracks to see what was causing a disturbance.  He stated that he:

found [the applicant and another soldier] arguing.  The barracks had been torn up.  We under took to separate them [the applicant and other soldier]. I told [the applicant] to calm down he said "F… Y…" when I said what did you say, he said I said "F… Y…".  We separated the two people and sent [the other soldier] to the other end of the barracks.  [The applicant] took a knife from his pocket and started toward me.  I told him to put it up.  He put his hands behind his back and another man grabbed the knife and threw it to me.  I gave it to [the staff sergeant] who at this time went to call the military police.  The military police came and took [the applicant] out.  [The applicant] appeared to be under the influence of alcohol.

6.  In the statement submitted by the applicant as part of his request to be administratively separated under the provisions of Army Regulation 635-200, Chapter, 10 in lieu of trial by court-martial, the applicant did not protest any of the charges against him nor indicate that any of the charges were inaccurate.

7.  In his request for separation, the applicant stated that he had not been subjected to coercion with respect to his request for discharge and had "been advised of the implications that are attached to it."  He also stated that he had consulted with a legal advisor who "fully advised me in this matter…."  The applicant also names the legal advisor he consulted with.

8.  Included with the applicant’s discharge packet was a statement signed by the legal advisor confirming the applicant had been counseled regarding the court-martial charges and his request for separation in lieu of court-martial.

9.  Army Regulation 635-200, Chapter 10, states that a legal advisor will inform a soldier contemplating discharge in lieu of trial by court-martial about the elements of the offenses that he has been charged with and that the individual acknowledges that he/she "is guilty of the charge[s] or of a lesser included offense[s]…."  

DISCUSSION AND CONCLUSIONS:

1.  There is no medical evidence available, or provided by the applicant, which proves or disproves the entry in item 40 of the applicant's Department of the Army Form 20.  The evidence does show that the applicant was in a patient status and transferred from the hospital in Vietnam to a medical facility in Japan in April 1969.  In the absence of evidence to the contrary, information contained in the applicant's file should be presumed to be accurate.

2.  The applicant's records contain a statement from the noncommissioned officer who was the victim of the applicant's disrespectful language and the knife incident.  The fact that the applicant may not have actually used the knife on the noncommissioned officer is not evidence that the charge of assault was inappropriate. 

3.  The applicant's request for an administrative discharge in lieu of trial by court-martial was an admission, in accordance with the provisions of Army Regulation 635-200, Chapter 10, that he was guilty of the charges or of a lesser included offense.  The applicant has presented no evidence to the contrary.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__FNE __  __MHM  _  __PHM__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		____Fred N. Eichorn ______
		        CHAIRPERSON

INDEX

CASE ID	AR2003090573	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031202	
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.