MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 January 2002
         DOCKET NUMBER: AR2001062301

         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. Luther L. Santiful		Chairperson
Mr. Roger W. Able		Member
Mr. Terry L. Placek		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)

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APPLICANT REQUESTS: That his discharge under other than honorable conditions be upgraded.

APPLICANT STATES: That he was young at the time and he would like his discharge upgraded.

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

At age 17, the applicant enlisted in the Regular Army on 9 December 1970 for a period of 3 years. He successfully completed basic training. While in advanced individual training, nonjudicial punishment was imposed against the applicant on
8 February 1971 for being absent without leave (AWOL) from 4 February 1971 to 7 February 1971. His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 1 July 1971, the applicant was convicted by a special court-martial of being AWOL on three separate occasions (from 6 April 1971 to 13 April 1971; from
19 April 1971 to 9 May 1971; and from 24 May 1971 to 8 June 1971). He was sentenced to be confined at hard labor for 5 months and to forfeit $89 per month for 6 months. On 7 July 1971, the convening authority approved the sentence.

Charges were preferred against the applicant for being AWOL on three separate occasions (from 8 October 1971 to 15 October 1971; from 2 November 1971 to 11 November 1971; and from 15 November 1971 to 8 December 1971).

On 16 December 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He indicated in his request that he understood that he could receive an under other than honorable conditions discharge; that he shall 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 State and Federal Law. He also acknowledged that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. Additionally, he elected not to submit a statement on his own behalf.

On 28 January 1972, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged under other than honorable conditions on 2 February 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served 6 months and 28 days of total active service with 205 days lost due to AWOL and confinement.

At age 18, the applicant enlisted in the Regular Army on 30 August 1972 for a period of 4 years. While in basic training, he went AWOL on 4 October 1972 and returned to military control on 3 November 1972. He went AWOL again on
4 November 1972 and returned to military control on 17 January 1973. The applicant was placed in pretrial confinement on 24 January 1973.

On 2 February 1973, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, for fraudulent entry. The unit commander based his recommendation for separation on the applicant’s fraudulent enlistment (concealment of prior military service) and 106 days of AWOL during his current term of service.

On 8 February 1973, the applicant consulted with counsel and waived consideration of his case by a board of officers, waived representation of counsel and elected not to submit a statement on his own behalf.

On 15 February 1973, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.
Accordingly, the applicant was discharged under other than honorable conditions on 16 February 1973 under the provisions of Army Regulation 635-200, chapter 14, for fraudulent entry. He had served 1 month and 8 days of total active service with 129 days lost due to AWOL and confinement.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board within its 15-year statute 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.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 of the regulation provided, in pertinent part, for the separation of personnel for misconduct - fraudulent entry. Paragraph 14-5a, provides in pertinent part, for concealment of prior service.
Soldiers separated under this chapter may be awarded an honorable discharge, or a general discharge, or an undesirable discharge.



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.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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. Evidence of record shows the applicant was discharged under other than honorable conditions on 2 February 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.

2. His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, was administratively correct and in conformance with applicable regulations. The type of discharge directed and the reasons for separation were appropriate considering all of the facts of the case.

3. Evidence of record also shows the applicant was discharged under other than honorable conditions on 16 February 1973 under the provisions of Army Regulation 635-200, chapter 14, for fraudulent entry.

4. This administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5. While the Board is empathic, the applicant’s contention that he was young at the time is not sufficiently mitigating to warrant relief.

6. The Board reviewed the applicant’s two brief records of service and determined that his quality of service during both enlistments 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.
7. The Board also determined that his two records of service, one record which included one special court-martial conviction, one nonjudicial punishment and 205 days lost, and one record which included 129 days lost, were not satisfactory. Therefore, the applicant is not entitled to a general discharge.

8. 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.

9. 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

LLS____ RWA_____ TLP____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062301
SUFFIX
RECON
DATE BOARDED	20020108
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19720202
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.