MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           4 February 2003                  
	DOCKET NUMBER:   AR2002074970

	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	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Ronald J. Weaver		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:  Upgrade of his discharge.

APPLICANT STATES:  In effect, that he was illegally enlisted, that he was not old enough to enlist and that he was promised that if there was a problem with the Army he could get out.  In support of his contention he submits a copy of a Birth Registration Card allegedly showing his date of birth a 22 July 1955 and that, in effect, his age was 17 years, 8 months and 6 days old when he enlisted. 

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

He enlisted on 28 March 1973.  His date of birth was 22 July 1954; he was 18 years, 8 months and 6 days old and a high school graduate.  All enlistment documents and all other service record documents list the same date of birth.  

He enlisted for station of choice option at Fort Bragg, North Carolina.  He completed basic training at Fort Jackson, South Carolina and was stationed at Fort Bragg for on the job training in his MOS (military occupational specialty) on 28 June 1973.  He was convicted by a special court-martial of absence without leave (AWOL) from 12 to 28 September 1973 and from 1 to 10 October 1973 and for disobeying a lawful order.  

Following confinement the applicant received three nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice (UCMJ:  On 5 February 1974 for assault, on 10 April 1974 for a 2-day AWOL and on 11 April 1974 for willful disobedience of a commissioned officer.  Notwithstanding this indiscipline, he was advanced to pay grade E-4 on 13 December 1974.

He was AWOL from 8 March to 11 July 1975 and when charges were preferred under the UCMJ the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged that he was guilty as charged or guilty of a lesser-included offense that could also result in a punitive discharge.  He also acknowledged that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive, including that he might forfeit any or all veteran benefits under both Federal land state law.

He submitted a statement that read, "It is my desire to request a discharge from the Army because [it] is hard to adjust [to] the military life because I have had about 4 AWOLs and 5 Article 15s and one court-martial and [this] shows that I can’t adjust to the military.  I'm causing the Army trouble and me because I really can’t adjust.  So, I'm giving up trying."

A 16 July 1975 physical examination found the applicant qualified for separation. At a mental status evaluation he displayed behavior normal.  He was fully alert, and oriented.  He displayed a level mood, normal thought content and a good memory.  He was considered to have no significant mental illness.  He was mentally responsible, able to tell right from wrong and to adhere to the right.  He had the mental capacity to understand and participate in board proceedings.

The separation authority approved the applicant's request and directed that an Undesirable Discharge Certificate be issued.  On 27 August 1975 the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.  He had 7 months and 24 days of creditable service and 276 days lost time .

On 7 June 1989 the Army Discharge Review Board (ADRB) considered the applicant's contention that he had been improperly enlisted, that he was only 
17 years old and had only a 10th grade education.  He averred that the recruiter was the instigator of this deception.  The ADRB denied his appeal.

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.  There is no corroborating evidence to show that the proffered birth registration form is correct.  Even if it is, there is no substantiating evidence to show that the recruiter was involved in the deception or that the recruiter informed the applicant that he could get out of the Army upon request.

2.  Furthermore, the contentions and evidence are not convincing, because the applicant underwent trial by court-martial, consulted with legal counsel again before completing the request for discharge in lieu of trial by court-martial and submitted a statement in his own behalf; without ever raising the issue of his age or the alleged promise. 

3.  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.  The type of discharge directed and the reasons therefore 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

____MHM__  __CLG__  _RJW_   DENY APPLICATION

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

INDEX

CASE ID	AR2002074970	
SUFFIX		
RECON		
DATE BOARDED	20030204	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19750827	
DISCHARGE AUTHORITY	AR635-200, Ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A99.05	
2.		
3.		
4.		
5.		
6.