MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  
	DOCKET NUMBER:   AR1999019115

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr.  		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:  The applicant is now deceased and is referred to hereafter as the former service member (FSM).  The FSM requested that his undesirable discharge (UD) be upgraded to an honorable discharge (HD). 

APPLICANT (FSM) STATES:  His service overall was honorable, he served in the Republic of Vietnam (RVN) and his period of absence without leave (AWOL) was to help his family. 

COUNSEL STATES:  That the family of the FSM has requested that his characterization be upgraded to an HD and the reason changed to Secretarial Authority.  The FSM had one extended period of being absent without leave (AWOL) due to a family emergency.  While he was assigned to Fort Bragg, North Carolina, his father suffered a devastating industrial accident, which left his back broken.  At the time, his mother was suffering from diabetes and the family had no income.  Both a compassionate reassignment and emergency leave were denied.  He requested the UD so that he could quickly get back home to care for his parents.  His service was honorable up to the period of AWOL.  His family has also requested relief from a Representative in Congress (letter endorsed) for Department of Veterans Affairs (DVA) benefits. 

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

On 29 January 1968, he enlisted in the Regular Army, unassigned, for a period of 
3 years.  He received training in military occupational specialty (MOS)
63A (Mechanic Maintenance Apprentice).  He completed basic and advanced individual training at Fort Bliss, Texas.  On 2 October 1968, he was honorably discharged.  On 3 October 1968, he reenlisted for 3 years, and his current MOS. 

On 26 January 1969, he was assigned to the RVN.  Both his conduct and efficiency ratings were excellent up until April 1969, at which time both declined.  His conduct was rated unsatisfactory and his efficiency was rated good.

While assigned to the RVN, nonjudicial punishments (NJP's) were imposed against the FSM under the provisions Article 15, Uniform Code of Military Justice on four separate occasions.  On 22 September and 4 November 1969 NJP's were imposed for failure to report to his appointed place of duty at the prescribed time (20 September and 2 November 1969).  His punishments included reduction from pay grade E-4 to pay grade E-3 (suspended), forfeiture of pay and extra duty.  On 13 December 1969, the punishment was vacated, but the reason for the vacation is not clearly stated.  His reduction to pay grade E-3 was therefore imposed.

On 22 December 1969, NJP was imposed when he was negligent in the performance of his duties and caused an accident while driving a military vehicle (16 December 1969).  His punishment included reduction from pay grade E-3 to grade pay grade E-2, forfeiture of pay and restriction.  On 13 January 1970, he received NJP for failure to report to his place of duty at the prescribed time 
(9 January 1970).  His punishment included forfeiture of pay and restriction.

On 26 February 1970, the FSM was reassigned to Fort Bragg, North Carolina.  On 28 July 1970, the applicant went AWOL for one day and the record does not indicate he received any punishment.  On 16 September 1970, he accepted NJP in the form of a Summarized Article 15 for failure to report to his place of duty at the prescribed time (16 September 1970).  His punishment included 14 days restriction.

On 30 December 1970, he accepted NJP imposed by a field grade officer, for failure to report to his appointed place of duty at the prescribed time.  His punishments included reduction from pay grade E-4 to grade E-3, restriction and extra duty.

Evidence of record shows that the FSM then was AWOL from 11 January - 
28 March 1971 and from 3 April - 28 June 1971.  Both his conduct and efficiency ratings were shown as unsatisfactory for the entire period that he was assigned to Fort Bragg.

On 7 July 1971, the FSM was medically cleared for separation.  On 
17 August 1971, he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  He had completed 
2 years, 5 months, and 3 days on the enlistment under review and he had served 8 months and 4 days on a previous enlistment.  He had served a total of 3 years, 1 month and 7 days on active military service and he had 165 days lost time. 

The FSM's record is void of facts and circumstances surrounding the discharge process.  However, the record does contain a properly constituted DD Form 
214 (Armed Forces of the United States Report of Transfer or Discharge) that was signed by him at the time of discharge.

Army Regulation 635-200 then in effect set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, 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.  Although, an honorable or general discharge was authorized, a UD discharge was then considered appropriate.

On 19 April 1999, the family of the FSM stated in a letter addressed to their 
Congresswoman that the FSM had been wounded, and exposed to Agent Orange while serving in Vietnam.  There is no evidence of either event in his records.

On 20 May 1999, the FSM's physician stated in a letter addressed to the Board that the FSM had been diagnosed to be suffering from metastaic small cell carcinoma, cancer of the lung.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the FSM, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the evidence of record or the FSM must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  No evidence has been submitted that would satisfy the aforementioned requirement. 

2.  The evidence of record shows the FSM was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  Although, part of the record is missing, in connection with such a discharge he would have been charged with the commission of an offense or offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, he would have been required to consult with defense counsel.  He would have been informed that he could receive a UD and the ramifications of receiving such a discharge.  He would have been required to authenticate a written document stating that he understood the effects of receiving such a discharge.  Only then would he have been afforded the opportunity to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offenses under the UCMJ.  The Board has presumed regularity and no information has been provided that would indicate the contrary.

3.  The FSM's record contains no evidence to indicate neither that he was treated for a wound received in the RVN nor that he was exposed to Agent Orange.

4.  The Board considered the FSM's entire record of service and was convinced that the reason for discharge and the characterization of service were both proper and equitable.

5.  Finally, the Board has taken into consideration the mitigating factors submitted by counsel.  However, the Board determined that there were other legitimate avenues the FSM could have pursued in resolving his personal problems. 

6.  The Board is empathetic with the family, but concludes that the FSM's less than honorable record of service does not provide a basis for an upgrade of his discharge.  However, the family may still work with the DVA concerning veterans benefits or burial benefits.

7.  In view of the foregoing, there is no basis for granting the family of the FSM's request. 

DETERMINATION:  No sufficient relevant evidence to demonstrate the existence of probable error or injustice has been submitted.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

CLA____  MHM____  ALR______  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999019115	
SUFFIX		
RECON		
DATE BOARDED	19990616	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19710817	
DISCHARGE AUTHORITY	AR635-200, CH 10 	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	(NC)	
REVIEW AUTHORITY		
ISSUES         1.	Counsel alleged the applicant went AWOL due to a family emergency.	
2.		
3.		
4.		
5.		
6.