MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 December 2002
	DOCKET NUMBER:   AR2002077085

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Charmane Collins		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, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, at the time he was drafted and the concept of him being needed by his country to achieve freedom for Vietnam was a good thought.  He comments that he felt proud to be around a large group of people since coming from a small town and a dysfunctional upbringing.  He states that his performance in basic training at Fort Lewis, Washington was excellent and he qualified expert on the rifle range.  Prior to the draft he attended the upward bound program where he met his first love and they were together for three years before they attended college.  He states that on his first pass to see his first love he lost track of time, which resulted in his being absent without leave (AWOL) and being picked up by the military police, which embarrassed him.  His second visitation to his first love was to end the relationship, which he could not do and he again overstayed and was AWOL.  He claims that his stupidity and immaturity did not allow him to consider the consequences of his actions.  He was again picked up by the military police, and this time placed in confinement.  At that time, after requesting to see his company commander without success, he was given and signed his discharge papers.  He contends that he has always felt regret and remorse for being discharged from the Army.  He claims that he is now a responsible husband and adult and is not the confused young man who had to grow and learn many lessons.  He feels that if he had been allowed to stay in the Army, he would have serve honorably.  He now requests that his discharge be upgraded.  In support of his application, he submits a copy of his separation document (DD Form 214) and eight letters of support.

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

On 6 April 1971, the applicant was inducted into the Regular Army for 2 years.  He attended basic combat training at Fort Lewis, Washington.  His record documents no acts of valor, significant achievement, or service warranting special recognition, and it confirms that the highest rank he attained while on active duty was private/E-1.  

The applicant’s discharge packet containing the specific facts and circumstances surrounding his discharge processing is not in the record.  However, there is a properly constituted separation document (DD Form 214) on file that contains the authority and reason for discharge.  This document was authenticated by the applicant with his signature and it confirms that on 8 September 1971, he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  At the time of his discharge, he had completed a total of only 4 months and 28 days of creditable active military service.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

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 an undesirable discharge.

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 notes the applicant’s contentions that his youth and immaturity resulted in his not understanding the consequences of his actions and that had he been allowed to remain in the Army he would have served honorably.  The Board also considered his post service conduct, as attested to in the supporting letters he provided with his application.  However, it finds these factors are not sufficiently mitigating to warrant the requested relief. 

2.  The applicant’s record is void of facts and circumstances concerning events that led to a discharge from the Army.  The Board notes that his record contains a properly constituted DD Form 214, which was authenticated by the applicant with his signature, and it presumes government regularity in the discharge process.  This separation document confirms that he was discharged in lieu of trial by court-martial.  

3.  Procedurally, this would have required him to consult with legal counsel after being charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  In addition, he would have had to voluntarily request separation after admitting guilt to the stipulated offense under the UCMJ.  Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

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

__ FNE  _  __JEA___  ___CC__  DENY APPLICATION

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

INDEX

CASE ID	AR2002077085	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/12/03	
TYPE OF DISCHARGE	 UOTHC	
DATE OF DISCHARGE	19710908	
DISCHARGE AUTHORITY	AR635-200 .  .  .  .  .  	
DISCHARGE REASON	In lieu of Trail by CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.