MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            22 June 2000                 
	DOCKET NUMBER:   AR1999030076

	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. Antoinette E. Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Curtis L. Greenway		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 undesirable discharge (UD) be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, he wrote to the Army Discharge Review Board (ADRB) which informed him that his time for their action had passed and suggested that he contact this Board for assistance. He relies on his service record in support of his application.

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

On 25 March 1968, he enlisted in the Regular Army for 3 years.  He completed his basic combat training and his advanced individual training, in military occupational specialty (MOS) 70A10 (Company Clerk), at Fort Leonard Wood, Missouri.  

On 18 June 1968, during training he received a nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order from a noncommissioned officer.  His punishment included forfeiture of $22.00 pay, 14 days of extra duty and restriction. 

On 7 July 1968, he was assigned to Fort Benjamin Harrison, Indiana, for duty in his MOS.  The applicant, while stationed at Fort Benjamin Harrison, was listed as absent without pay (AWOL) from 5 to 9 October 1968.  There is no recorded punishment for this period of AWOL.

On 18 January 1969, the applicant was transferred to the Republic of Vietnam for duty in his MOS. 

On 23 April 1969, he was convicted by a special court-martial (SPCM) of 
willfully leaving his assigned guard post, of assaulting a noncommissioned officer on 22 March 1969 and of willfully disobeying a lawful order from his superior commissioned officer on 24 March 1969.  His sentence included forfeiture of $70.00 pay per month for 6 months and confinement at hard labor for 
6 months, but the confinement was suspended.

The applicant, while stationed in the RVN was again listed AWOL from 6 to 
26 July 1969.  There is also no recorded punishment for this period of AWOL.

On 7 September 1969, the applicant was charged with one specification of violation of Article 80, UCMJ, by attempting to murder a commissioned officer by exploding an M-26A1 fragmentation grenade in his proximity; with three specifications of violation of Article 134, UCMJ, by threating to injure a commissioned officer, by communicating a threat to injury his first sergeant and by wrongfully having in his possession 68 grams, more or less of marihuana; and one specification of violation of Article 92, UCMJ, by purchasing in excess of 
$200.00 in U. S. dollar instruments during the period of one month without authority.

On or about 1 October 1969, the applicant consulted with legal counsel, and voluntarily requested discharge under the provisions of chapter 10, Army Regulation AR 635-200, for the good of the service in lieu of trial by court-martial. He did not submit a statement in his own behalf.  His chain of command recommended approval of his discharge. 

On 15 October 1969, the separation authority approved the applicant’s separation with a UD.

On 1 November 1969, he returned to the Continental United States and was medically cleared for separation on 4 November 1969.  On the same date he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial, with a UD.  He had 1 year, 
6 months and 15 days of creditable service and 26 days of lost time due to being AWOL.

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 a UD discharge.

The applicant never made application to the ADRB within the statutory time limit establish to apply to that Board.

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 the aforementioned 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. 

3.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

4.  Further, the applicant’s prior acts of misconduct provided no basis to grant relief in his case based on his overall period of service.

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

__mdm__  __wtm___  __clg____  DENY APPLICATION

Carl W. S. Chun
Director, Army Boards for Correction
of military Records

INDEX

CASE ID	AR1999030076	
SUFFIX		
RECON		
DATE BOARDED	20000622	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19690411	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A67.50	
2.	A74.00	
3.	A71.00	
4.	A39.00	
5.		
6.