MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 August 2000
	DOCKET NUMBER:   AR1999032067

	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	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Calvin M. Fowler		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 undesirable discharge be upgraded. 

APPLICANT STATES:  In effect, that he volunteered to go to Vietnam where he engaged in combat with the enemy.  In support of his case he also indicates that he served in combat for which he earned the Combat Infantryman Badge (CIB) and that he also earned other awards and decorations during his tenure in service.  He comments that his discharge should not be a life sentence.

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

He entered the Regular Army on 14 May 1969 for 3 years.  He successfully completed basic training at Fort Bragg, North Carolina and advanced individual training (AIT) at Fort McClellan, Alabama.  Upon completion of AIT he was awarded military occupational specialty 11B (Infantryman) and he was assigned to Fort Campbell, Kentucky for his first permanent duty station.

His Department of the Army (DA) Form 20 (Enlisted Qualification Record) shows that the highest rank he held while on active duty was Private First Class/E-3 (PFC) which he attained on 15 February 1970.  It also indicates that he was reassigned to Vietnam and arrived there for duty with the 1st Cavalry Division in June of 1970.  Other than the CIB, the applicant’s record does not document any significant acts of valor or achievement during his Vietnam tour. 

His record shows an extensive disciplinary history which includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ), on two separate occasions.  The first on 9 February 1970 for failure to go to his prescribed place of duty and the second on 19 September 1970, while he was serving in a combat zone, for disobeying the lawful order of a superior commissioned officer to join his company for movement to the field. 

In December 1970, while he was still serving in Vietnam, two court-martial charges were preferred against the applicant.  The first charge contained two specifications of violation of Article 86 of the UCMJ for being absent without leave (AWOL).  His first AWOL was for 21 days from 22 September to 
13 October 1970 and the second was for 51 days from 27 October to 
16 December 1970.  The second court-martial charge was for violation of Article 90 of the UCMJ for disobeying a lawful order from his commanding officer.  

On 21 January 1971, the applicant consulted legal counsel and was advised of the basis for the contemplated court-martial action and of its effects.  In addition, he was informed of the maximum allowable punishment under the UCMJ for the offenses with which he was charged and he was also notified that if he received an undesirable discharge he could be deprived of Veterans benefits under Federal and State law.  
After consulting legal counsel, the applicant elected to voluntarily request separation for the good of the service, under the provisions of Chapter 10, 
Army Regulation 635-200, in lieu of court-martial.  In this request, the applicant admitted guilt to the stipulated offenses and acknowledged that his request for an administrative separation in lieu of trial by court-martial was voluntary and had been made free of coercion. 

On 5 February 1971, the appropriate authority approved the applicant’s request for discharge and directed he receive an undesirable discharge.  Accordingly, on 13 February 1971, the applicant was discharged after completing a total of 
1 year, 8 months, and 9 days of creditable active military service and after having accrued 72 days of time lost due to AWOL.

The applicant’s case was reviewed by the Army Discharge Review Board (ADRB) at his request on three separation occasions.  The first of these reviews took place in May 1973, the second was accomplished under the provisions of the Special Discharge Review Program (SDRP) in February 1978, and the final review was conducted in December 1978.  In all three cases the ADRB panels denied the applicant’s requests for an upgrade to his discharge and determined that the discharge was proper and equitable in all respects.

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.  Although an under other than honorable conditions discharge is normally considered appropriate, an honorable or general discharge is authorized.  At the time of the applicant’s separation the regulation provided for the issuance of an UD.

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.  The evidence of record shows that he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and after consulting with defense counsel, he voluntarily requested separation from the Army in lieu of trial by court-martial.  In the opinion of the Board, this request for discharge shows that he wished to avoid a trial by court-martial and the punitive discharge which may have resulted.  Therefore, the Board found no basis to grant relief in this case at this time.  

2.  The Board noted the contentions of the applicant that he served in and engaged the enemy in combat and that his discharge should not be a life sentence.  However, after carefully examining the evidence in this case, the Board finds that the character of the applicant’s discharge is commensurate with his overall record of military service and the factors he raised do not mitigate his misconduct sufficiently to warrant relief.

3.  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.

4.  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

__esc___  __js  ____  ___cmf__  DENY APPLICATION

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

INDEX

CASE ID	AR1999032067	
SUFFIX		
RECON		
DATE BOARDED	2000/08/03	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/02/13	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	Good of the Service-In Lieu of Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.