MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  4 August 1999       
	DOCKET NUMBER:   AR1999024884

	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	
	M Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. George D. Paxson 		Member	
	Mr. John H. Kern		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 (GD) under honorable conditions be upgraded to a fully honorable discharge (HD).

APPLICANT STATES:  In effect, in two letters written in his own behalf that he completed advanced individual training (AIT) with limited knowledge and a limited ability to perform his duties.  He was then assigned to an Armor battalion in Germany where he performed odd jobs and he never worked in his military occupational specialty (MOS).  On 15 November 1969, he was assigned to the Republic of Vietnam (RVN) and was sent into battlefield conditions.  His had little confidence and his skills were limited.  Yet he did the best that he could to save lives.  He began to have nightmares and he could no longer function as a result of the death, agony, pain and suffering that he had endured.  He submits a written statement by his team leader at the Wichita Veterans Center in support of his request 

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

That he successfully served in the Regular Army from 15 July 1968-1 September 1969, and he was honorably discharged.  His military occupational specialty (MOS) was 91A (Medical Corpsman).  On 2 September 1969, he reenlisted in the RA for 4 years, pay grade E-3, and MOS 91B (Medical Specialist).  The applicant was assigned to the RVN from 15 November 1969-22 January 1971.

On 19 February 1970, he was found guilty by a special court-martial of willfully disobeying a lawful command from a commissioned officer to go to perform duties in the field on 18 December 1969.  His sentence included reduction from pay grade E-4 to pay grade E-1, forfeiture of pay, and confinement at hard labor for 6 months.  He was confined from 26 February-8 April 1970 in the RVN and then he was released.  However, on 20 June 1970, the unexecuted portion of his sentence to confinement was vacated and he was returned to confinement.  He served in confinement from 26 June-28 August 1970.  The reason for the vacated sentence is unclear.

On 8 March 1971, he was assigned to Fort Hood, Texas.  On 19 May 1971, nonjudicial punishment (NJP) was imposed against the applicant under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 3-17 May 1971.  His punishment included reduction from pay grade E-3 to pay grade E-2, forfeiture of pay, restriction and extra duty.

The applicant went AWOL again from 7 June 1971-2 April 1972 and from 
28 April-5 May 1972.

On 12 April 1972, court-martial charges were preferred against the applicant for the period of AWOL from 7 June 1971-2 April 1972.  He consulted with legal counsel and requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.  He was advised that the offense for which he was charged could lead to a UD, and he stated that he understood the ramifications of a UD.  He also submitted a statement in his own behalf, he requested that he be granted a GD, due to the fact that, he spent 
14 months in the RVN and that he was awarded the Combat Medical Badge and the Army Commendation Medal. 

On 12 April 1972, the applicant’s unit commander recommended separation with GD.  On 13 November 1985, competent authority approved his request for discharge but directed the issuance of a UD. 

On 5 May 1972, the applicant was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service-in lieu of trial by court-martial, with a UD.  He had completed 1 year 5 months and 26 days of active military service on the enlistment under review.  He also had completed 1 year, 
1 month and 18 days of prior active service and he had 428 days lost time due to being AWOL and in confinement. 

On 18 May 1977, the ADRB upgraded the applicant's discharge from a UD to a GD under the Special Discharge Review Program (SDRP).  The upgrade was based on his receipt of the Army Commendation Medal, his satisfactory completion of his RVN tour, and his honorable discharge from a prior period of service.  The narrative reason for the discharge was not changed.

The ADRB Board voted not to affirm the applicant's discharge under the SDRP review.  The Board took into consideration his lost time, his disciplinary record, his service in the RVN, and the fact he refused to go to the field in support of a combat operation.  The Board concluded that his overall record of service should be characterized under the regular review criteria, Public Law 95-126, as undesirable.

On 4 April 1977, the Department of Defense (DOD) directed each armed service to conduct a review of discharges of former service members who were discharged between 4 August 1964 and 28 March 1973, later expanded until 1977, with an undesirable to a general discharge.  This program was entitled the DOD Discharge Review Program (Special) or SDRP.  Upgrade of such discharges to either a general or an honorable level was mandated, if the former service member met one of certain criteria, to include:  for being wounded in combat in Vietnam, for receiving a military decoration other than a service medal, for successful completion of a normal tour in Southeast Asia, for receiving an honorable discharge from a previous tour of service and for certain other criteria.
On 8 October 1979, Public Law 95-126, was enacted.  It denied veteran benefits, administered by the Veterans Administration, to any former service member who was AWOL for more than 180 consecutive days, who was classified as a deserter or who was classified as a conscientious objector.  In addition, the law required the DOD to establish historically consistent, uniform standards for all discharge reviews.  The DOD was required to review all discharges previously upgraded under the SDRP, and certain other programs, utilizing these uniform standards.  This review would establish the former service member’s right to request that the VA grant favorable action on a request for veteran benefits.  If the upgrade of a favorable SDRP was not affirmed under uniform standards, the former service member would not be entitled to most VA benefits, unless he or she was otherwise entitled.  However, the upgraded discharge under the SDRP would stand for other reference purposes.

Army Regulation 635-200, then in effect, set 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.  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 was then considered appropriate.

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 has failed to submit evidence that would satisfy the aforementioned requirement.

2. The applicant's voluntary request for separation under the provisions of chapter 10, Army Regulation 635-200, 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.

3.  The Board took into consideration the documents the applicant submitted, all of his honorable service, his RVN service, the awards that he received during his service and the seriousness of the offenses for which he was discharged.  However, these documents and record of service provide no basis to overcome the reason for and the characterization of his discharge.

4.  The Board noted the ADRB action not to affirm the upgrade of the applicant's discharge under the SDRP.  This Board concurs with the assessment of the ADRB that the his discharge did not warrant an upgrade under current standards.

5.  The Board empathizes with the applicant in his RVN experience.  However, the Board determined that he had many legitimate avenues through which to obtain assistance for his personal feelings without committing the misconduct which has led to the separation action under review.

6.  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

FKM____  GDP____  JHK_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024884	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19720505	
DISCHARGE AUTHORITY	AR 635-200, Chapter 10 	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	Deny	
REVIEW AUTHORITY	Director	
ISSUES         1.	A71.00	
2.	A92.07	
3.	A93.09	
4.		
5.		
6.