MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 July 2000
	DOCKET NUMBER:   AR1999034765

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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 be upgraded to honorable.  He also asks that his reentry (RE) code be changed from RE-3B to RE-1.

APPLICANT STATES:  That clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge.  He is a disabled individual who has an amputated left leg and also heart problems since the 1970s.  With an honorable discharge, he would be eligible for medical help through the Veterans Administration.  He states that his average conduct and efficiency ratings were good and his record of promotions shows he was a generally good service member.  He offers that he has been a good citizen since discharge, with nothing but minor police offenses.  He contends that his record of court-martial convictions indicates only isolated and minor offenses.

In support of his request, the applicant submits four letters of character reference and his State of North Carolina Criminal Record Check.

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

He was inducted on 19 March 1968 and, after training, was assigned to Europe.  The Board notes that the applicant was promoted to specialist four (E-4) upon completing advanced individual training.

Although there is no record of proceedings under Article 15, Uniform Code of Military Justice (UCMJ), on file in the applicant’s military records, there is a written order showing that he was reduced in rank from specialist four to private first class (E-3) on 26 December 1968 for misconduct.

There is also an order on file showing that the applicant forfeited $32.00 of pay on 14 February 1969, also for misconduct.

On 4 May 1969, the applicant went absent without leave (AWOL) 41 days en route to an overseas replacement station to Vietnam.  On 25 June 1969, he was administered nonjudicial punishment under Article 15, UCMJ, for the AWOL.  His punishment included reduction in rank to private (E-2) and forfeiture of $31.00.

A 25 May 1970 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1, indicating no physical or mental limitations for duty.  In the report of medical history the applicant furnished for the examination, he stated that his health was “good.”

On 17 August 1970, the applicant was formally charged with four specifications of AWOL, from 6 August 1969 to 26 September 1969; from 6 October 1969 to 
28 February 1970; from 7 March 1970 to 20 April 1970; and from 8 June 1970 to 13 August 1970; and two specifications of breaking arrest.  

On 28 September 1970, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He stated that he acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation, nor had any desire for further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He declined to submit a statement in his own behalf.

On 9 October 1970, the separation authority, a major general, approved the request and directed the applicant be issued an Undesirable Discharge Certificate.

The applicant was discharged on 16 October 1970 at Fort Rucker, Alabama.  He had 1 year, 7 months and 2 days of creditable service and 391 days of time lost.

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 an undesirable discharge.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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 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.  There is no indication that the request was made under coercion or duress.

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 avoid the court-martial and the punitive discharge that he might have received.

3.  The applicant’s accelerated promotion to specialist four has been noted; however, the Board also notes that the applicant was reduced back to private within 10 months of his promotion.

4.  The applicant has no record of court-martial convictions as he has stated.  However, the Board does not consider four charges of AWOL and two charges of breaking arrest, brought against him on 17 August 1970, as “isolated and minor offenses.”

5.  While the Board has taken cognizance of the applicant’s good post-service conduct and accomplishments, these factors alone do not warrant the relief requested.

6. 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.

7.  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

__cmf___  __emw__  __jpi____  DENY APPLICATION

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

INDEX

CASE ID	AR1999034765	
SUFFIX		
RECON		
DATE BOARDED	20000706	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19701016	
DISCHARGE AUTHORITY	AR635-200 CH10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.