MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 April l999                   
	DOCKET NUMBER:   AR1999019108

	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. Loren G. Harrell		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Christopher J. Prosser		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, upgrade of his undesirable discharge (UD) to an honorable discharge (HD).

APPLICANT STATES:  In essence, that he had good service in the Republic of Vietnam (RVN), that the “issue” in his case was racial and that the discharge was too harsh.  

COUNSEL CONTENDS:  Counsel fully supports the issues raised by the applicant and requests that the Board base it’s final decision on fairness and equity.  

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

On 5 June 1970, the applicant enlisted in the Regular Army for 3 years.  He was 
18 years of age and had completed l0 years of schooling.  His Armed Forces Qualification Test (AFQT) score was 2l, Category IV.  He was considered a Project 100,000 soldier (a test bed of 100,000 members of the Armed Forces inducted and enlisted in the early 1970’s time-frame, who were identified by the Department of Defense to be monitored due to low AFQT scores.  However, no special benefits or entitlements were authorized these members of the Armed Forces).

The applicant was trained in military occupational specialty (MOS) 12A (Combat Engineer or Pioneer).  During his training phase, he took High School General Educational Development tests, but failed to pass them.  He was assigned to the RVN on 23 November 1970.  The highest rank he attained was private first class. 

Two personnel action requests in his records, the first being a request for transfer to another unit (he stated that his MOS was as a Cook (MOS 94B), but it was denied because his MOS was 12A (Combat Engineer)) in late May 1971 and the second a request for compassionate leave to the United States due to the illness of his mother in July 1971, both showed his conduct and efficiency ratings were considered unsatisfactory.  

On 2 June 1971, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for leaving his guard post in a combat zone before being properly relieved (11 May 1971); for two offenses of disobeying the lawful orders of his superiors (12 and 17 May 1971); and for failure to go to his appointed place of duty (12 May 1970).  His punishment included reduction to pay grade E-1 and to forfeit $75 pay per month for 
2 months.  He did not appeal the punishment.  

Other evidence of record indicates that he received three more NJP’s.  The first on 14 (sic) June 1971 was for being absent without leave from l4-18 June 1971; the second on 25 June 1971 for failure to report for work call formation; and the third on 30 August 1971 for the same offense.  His punishments included forfeiture of $50 pay per month for 2 months, extra duty for 15 and 7 days respectively and a $10 forfeiture of pay.   

On 27 September 1971, the applicant was charged with failure to go to his appointed place of duty; for starting a fight in his unit mess hall; for communicating disrespectful language to a noncommissioned officer; and communicating a threat to injure another soldier.  All these incidents occurred on 25 September 1971.  A review of statements with the charge sheets indicate that the last three incidents may have had racial overtones.  

On 28 October 1971, the applicant was further charged with escaping from lawful custody on 17 October 1971 and for being AWOL from 17 through 27 October 1971.  

Both sets of charges were referred for trial by special court-martial.  

On 1 November 1971, the applicant consulted with legal counsel, and requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In this request he stated that he understood that he would receive a discharge under other than honorable conditions, and would receive a UD, that he would be ineligible for many or all benefits administered by the Veterans Administration and other benefits administered under State and Federal law.  He did not submit a statement in his own behalf.

His company and battalion commanders both recommended disapproval of the request.  The battalion commander indicated that another soldier involved in the incident had already been tried and found guilty of the initial set of offense.  However, the brigade commander and the staff judge advocate both recommended approval of the request.  The separation authority concurred in these latter recommendations, and on 17 November 1971 approved the request for discharge and directed that the applicant be discharged with a UD.

On 4 December 1971, the applicant was discharged under the provisions of Army Regulation 635-200, chapter l0, for the good of the service in lieu of trial by 
court-martial, with a UD.  He was credited with l year, 5 months and 26 days total active service and 4 days lost time (NOTE:  This should have been 14 days lost time due to his AWOL period in October 1971).  

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 a UD.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s record of service in a combat zone in the RVN indicates a less than satisfactory record to include four NJP actions, two period of lost time and unsatisfactory conduct and efficiency ratings.  

3.  There is insufficient evidence in the available records to indicate that the applicant was the victim of racial prejudice.

4.  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.  Also, he failed to submit any statement on his own behalf during the discharge process.  

5.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

6.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

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

__CJP__  __ESC___  __AMC__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC19990119108	
SUFFIX		
RECON		
DATE BOARDED	19990429	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19711204	
DISCHARGE AUTHORITY	AR635-200, C10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	A01.13	
3.	A92.17	
4.	A92.35	
5.	A93.15	
6.	A94.07