MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            24 May 2000
	DOCKET NUMBER:   AR1999034653

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Meta Waller		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:  Reconsideration of his earlier application to correct his records by upgrading his discharge to honorable.

APPLICANT STATES:  That the discharge was improper because punishments authorized did not include a punitive discharge.  That it was inequitable and probably improper to approve the Chapter 10 request because no court reporter had been assigned.  The case was not reviewed by the staff judge advocate (SJA).  Review by the SJA would have precluded the above impropriety and also have insured that the applicant’s medals were considered.  The applicant’s assigned counsel was ineffective or he would not have let the applicant submit a Chapter 10 request in such circumstances.  Also, the conviction that motivated the applicant’s AWOL was for a miniscule amount of marijuana residue that was illegally seized and improperly admitted evidence.  The same ineffective lawyer had represented him in that case.  The applicant never understood the nature of the Chapter 10 request.  He would never have accepted an other than honorable discharge.  The applicant served in a combat situation, riding shotgun on convoys in Quang Tri and at Cu Chi.  His ability to serve was impaired by his deprived background as evidenced by the requirement for a moral waiver.  The “whole person concept” shows that he wanted to serve properly but couldn’t.  His awards, consisting of the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal and the Sharpshooter Qualification Badge with Rifle Bar warrant the requested relief.  He volunteered for duty in Vietnam after learning that his brother’s unit had been overrun and his brother declared (mistakenly) missing in action.  A table shows an exceptionally high number of administrative discharges in 1970.

COUNSEL CONTENDS:  In effect, counsel concurs in the applicant's presentation and requests that any doubt be resolved in the applicant's favor.  Counsel also maintains that the applicant’s behavior constituted military misconduct but not a crime and avers that many individuals in similar situations received nonjudicial punishment under Article 15, UCMJ but were not discharged. Counsel also notes that the applicant reports mitigating and extenuating circumstances.  Counsel asks that the Board to consider these contributing factors as well as the applicant’s youth and immaturity and that any doubt be resolved in the applicant’s favor.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on 25 March 1999  (COPY ATTACHED).

The applicant’s contentions that the discharge was improper because an SJA review was required, that the discharge was inequitable because no court reporter was assigned and that his assigned military lawyer was ineffective as well as counsel’s contention that his youth and other factors mitigate the misconduct are new arguments that require Board consideration.

 Army Regulation 635-200, as then in effect, did not require a review by the SJA.
 
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.  Aside from those specifically mentioned above as requiring Board consideration, the submitted contentions were fully considered and adequately addressed in the original review of the case.

2.  Absent assignment of the charges to a court-martial that could have resulted in a punitive discharge there is no error or injustice in there not being a detailed court reporter at the time of the applicant’s request for discharge.  There is no available evidence that the applicant’s assigned counsel was ineffective.  

3.  No SJA review was required by the governing regulation. 

4.  Any claim of impairment by reason of youth or for any other cause are outweighed by the fact that the applicant was qualified for enlistment, completed training and finished approximately 1 year of service with only a single minor instance of indiscipline.

5.  There is no evidence to support the contentions that any mitigation arises from any special circumstances of the case.  The applicant’s overall record of misconduct as evidenced by NJPs and three court-martial convictions in addition to the offense that led to the discharge far outweighs his record of redeeming service and any perceived mitigation. 

6.  There is no doubt to be resolved in the applicant’s favor and no requirement that the Board resolve any such doubt in the applicant’s favor. 

7.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

8.  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

__JNS __  __MDM__  __MW___  DENY APPLICATION

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

INDEX

CASE ID	AR19990034653	
SUFFIX		
RECON		
DATE BOARDED	20000524	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19700806	
DISCHARGE AUTHORITY	AR635-200, Chapter 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70.00	
2.		
3.		
4.		
5.		
6.