MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            20 July 2000
	DOCKET NUMBER:   AR1999031883

	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
Ms. Antoinette Farley		                        Director
                        Analyst	

The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Kenneth L. Wright		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 bad conduct, actually an undesirable discharge (UD), be upgraded to a fully honorable discharge. 

APPLICANT STATES:  In effect, that his case should be based on his excellent combat record.  He further relies on his military record in support of his case.

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

On 3 February 1966, he was inducted into the Army of the United States (AUS), 
with a moral waiver for grand larceny.  He completed basic training at Fort Jackson, South Carolina.  

On or about 12 July 1966, he completed advanced individual training in military occupational specialty (MOS) 36K20 (Field Wireman) at Ft Kobbe, Canal Zone.  He remained in Panama for permanent duty.  On 15 November 1966, he received a summarized nonjudical punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for being in an “Off Limits” area.  His punishment included 
7 days of extra duty and restriction.  On 14 February 1967, he was advanced to pay grade E-4.  

On 27 July 1967, he was honorably discharged.  He had served for 1 year, 5 months and 25 days of active service and had no lost time.  

On 28 July 1967, he immediately reenlisted in the Regular Army for 3 years.  On 
30 July 1967, he was assigned to duty in the Republic of Vietnam (RVN).  He returned to the Continental United States on 10 September 1968.  On 8 January 1969, he was assigned to Fort Hood, Texas.  

Between 16 July and 6 September 1969, the applicant was listed as being absent without leave (AWOL) for a total of 53 days.  On 7 September 1969, the applicant 
returned to military control at Fort Dix, New Jersey.  He was reduced by NJP action from pay grade E-4 to pay grade E-3 on 19 September 1969.

On 24 October 1969, the applicant was then assigned to Fort Story, Virginia, where he performed duties in MOS 61A (Amphibious Water Craft Operator).  On 
5 February 1970, the applicant was listed as being AWOL.  On 13 October 1971, he was returned to military control at the Personnel Control Facility, Fort Dix.

On 14 October 1971, he was charged with being AWOL from 5 February 1970 to 
13 October 1971. 

On 19 October 1971, he received a separation medical examination during the discharge process.  He was found medically cleared for separation.

On 26 October 1971, the applicant consulted with legal counsel, requested discharge under the provisions of Chapter 10, Army Regulation AR 635-200, in lieu of trial by court martial.  He did not submit a statement in his own behalf.
On 23 November 1971, the separating authority approved his separation and directed the issuance of a UD.

On 17 January 1972, the applicant was discharged with a UD under the provisions of chapter 10, AR 635-200, for the good of the service, in lieu of trial by court-martial.  He had completed 2 years, 7 months and 21 days of creditable service during the enlistment under review and had 668 days of lost time due to being AWOL.  The highest pay grade he attained was E-4.  His awards and decorations included the National Defense Service Medal, the Vietnam Service Medal, and the RVN Campaign Medal with/60 Device.

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.  A UD was then considered appropriate.

There is no evidence that the applicant ever applied to the Army Discharge Review Board for a review of 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.  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 request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to void the court-martial and the punitive discharge that he might have received.

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

4.  The Board noted the applicant’s prior period of honorable service and his successful tour of duty in the RVN.  However, the Board did not find these factors sufficiently mitigating to overcome his serious misconduct during his most recent 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

__sac___  __amc___  __klw___  DENY APPLICATION

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

INDEX

CASE ID	AR1999031883	
SUFFIX		
RECON		
DATE BOARDED	20000720	
TYPE OF DISCHARGE	UD 	
DATE OF DISCHARGE	19720117	
DISCHARGE AUTHORITY	AR 635-200, Chapter 10	
DISCHARGE REASON	A144.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.