MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            19 April 2000     
	DOCKET NUMBER:   AR1999031349

	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.

	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Van B. Cunningham		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 discharge under other than honorable conditions be upgraded to honorable.   

APPLICANT STATES:  In effect, that after returning from Vietnam he was informed that he had to serve stateside duty for 3 years.  He contends that he tried to settle in and do his job, that he got married and tried to settle down, and that he started drinking too much and would not admit that he had a problem.  He claims that his problems at home and at work kept mounting and that he was too young and stupid to ask for help.  He contends that instead of getting help he created more problems by going AWOL.  He states that in order to avoid going to jail he voluntarily requested a discharge.  He further states that he has always regretted his choice and believes that if he had reached out for help, he would have stayed in the Army.  He goes on to state that he never had any understanding of what he was giving up when he took an undesirable discharge, that he is active in the Veterans of Foreign Wars and the American Legion and he has a previous honorable discharge.  In support of his application, he submits a letter of explanation, a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), a Standard Form 180 (Request Pertaining to Military Records), a copy of his DD Form 214 (Report of Transfer or Discharge), a letter from the Paralyzed Veterans of America (PVA) and VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative). 

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

The applicant enlisted on 1 February 1965 for a period of 3 years.  He successfully completed basic and advanced individual training and was transferred to Germany for duty as an armor crewman.

Between 7 August 1965 and 12 January 1966, nonjudicial punishment (NJP) was imposed against the applicant on four occasions for willfully damaging property, (two specifications) failure to be at his appointed place of duty and breaking restriction. 

The applicant was honorably discharged on 16 February 1966.  He immediately reenlisted on 17 February 1966 for a period of 6 years.  

On 7 July 1966 NJP was imposed against the applicant for being insubordinate to the platoon sergeant by disobeying a direct order while intoxicated.   

On 29 August 1966 the applicant was convicted by summary court-martial of being AWOL from 1 August 1966 to 9 August 1966.  He was sentenced to forfeit $50 per month for 1 month, restriction for 60 days and to be reduced to E-2.  On 30 August 1966 the convening authority approved the sentence. 

On 11 October 1966 NJP was imposed against the applicant for being AWOL from 4 September 1966 to 30 September 1966.

On 12 July 1967 the applicant was convicted by special court-martial (SPCM) of wrongful appropriation of a Stop sign and Speed Limit sign.  He was sentenced to confinement at hard labor for 4 months, forfeiture of two-thirds pay for a period of 4 months and reduction to E-1.  On 21 July 1967 the convening authority approved only so much of the sentence as provides for confinement at hard labor for 3 months, forfeiture of two-thirds pay per month for 3 months and reduction to E-1. 

The applicant was transferred to Vietnam on 18 September 1967.  While in Vietnam, NJP was imposed against the applicant on 7 January 1968 for being disrespectful to a superior noncommissioned officer.  He was transferred back to the United States on 11 September 1968.   

Between 9 March 1969 and 15 June 1970, NJP was imposed against the applicant on two occasions for being AWOL from 20 February 1970 to 
23 February 1970 and failure to report to his appointed place of duty.

On 10 February 1971 the applicant was convicted by SPCM of being AWOL from 14 July 1970 to 30 January 1971.  He was sentenced to be confined at hard labor for 5 months and to be reduced to E-1.  On 24 February 1971 the convening authority approved the sentence. 

The facts and circumstances surrounding the applicant’s discharge are not contained in the available records; however, his records show that he was discharged under other than honorable conditions on 27 September 1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 5 years, 11 months and 5 days of total active service with
268 days of lost time due to AWOL and confinement.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board within its 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 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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 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 an in conformance with applicable regulations.  

2.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate considering all of the facts of the case.

3.  The contentions of the applicant and the PVA have been noted by the Board.  However, the Board determined that the applicant’s extensive disciplinary record (two SPCM’s, one summary court-martial and nine NJP’s) and the overall quality of his last period of service are too serious and do not warrant recharacterization of his 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 the aforementioned 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

JPH____  EJZ____  VBC_____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031349	
SUFFIX		
RECON		
DATE BOARDED	20000419	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19710927	
DISCHARGE AUTHORITY	AR 635-200 Chapter 10  	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.