MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 January 2002    
	DOCKET NUMBER:   AR2001065448

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Richard T. Dunbar		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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES:  That he served his country with courage, faithfully and with honor.  He contends, in effect, that after leaving Vietnam and having experienced what he did in Vietnam, he could not handle the negative reaction from the American people.  In support of his application, he submits a copy of his DD form 214 (Certificate of Release or Discharge from Active Duty); a letter, dated 26 March 1998; a letter, dated 26 March 1998, from his ex-wife; and a letter of support, dated 23 November 1997. 

EVIDENCE OF RECORD:  The applicant's military records were requested from the National Personnel Records Center in St. Louis, Missouri.  However, very limited service personnel records were provided to the Board for consideration.  Records show the applicant enlisted on 6 September 1966 for a period of 3 years.  An affidavit executed by the applicant indicates that he served in Vietnam from October 1967 to October 1968.

Records show nonjudicial punishment was imposed against the applicant on two occasions (no other details available).  

The applicant went absent without leave (AWOL) on 9 November 1968 and returned to military control on 18 November 1997.  Charges were preferred against the applicant for the AWOL period on 20 November 1997 and trial by special court-martial was recommended.  

On 20 November 1997, after consulting with counsel, the applicant submitted a request for discharge in lieu of trial by courts-martial under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Conditions Discharge.  Additionally, he elected not to submit a statement in his own behalf.

On 24 November 1997, the applicant’s unit commander recommended approval of the applicant’s request for discharge and issuance of a general discharge. 

On 24 November 1997, the Chief, Criminal Law Division, at U.S. Army Field Artillery Center and Fort Sill, did not concur with the unit commander’s recommendation for separation with a general discharge.  He cited that the applicant was charged with an AWOL offense for 29 years and that he received two Article 15’s during his enlistment; therefore, a general discharge was not merited by the applicant’s overall record.  He recommended that the applicant be separated with a discharge under other than honorable conditions.

On 24 November 1997, the separation authority approved the applicant’s request for discharge and directed that he be furnished a discharge under other than honorable conditions.

Accordingly, the applicant was discharged under other than honorable conditions on 26 November 1997 under the provisions of Army Regulation 635-200, chapter 10.  He had served 2 years, 2 months and 3 days of total active service with 10,601 days lost due to AWOL.

On 7 November 2001, the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.

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, 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 is authorized, a discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 Board reviewed the applicant’s record of service which included two nonjudicial punishments and 10,601 days of lost time and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  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.

5.  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

GDP____  WTM__  RTD_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001065448	
SUFFIX		
RECON		
DATE BOARDED	20020124	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19971126	
DISCHARGE AUTHORITY	AR 635-200, Chapter 10	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.