MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 July 2002
         DOCKET NUMBER: AR2001064286

         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. Walter Avery, Jr.		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Hubert O. Fry		Member
Ms. Gail J. Wire		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 under other than honorable conditions discharge be upgraded to honorable.

APPLICANT STATES: In effect, that the under other than honorable conditions discharge is a life sentence and negatively impacts on his ability to improve himself. He was utterly devastated when his biological parents divorced after 30 years of marriage. During the same period his brother-in-law and nephew were killed in an automobile accident, further affecting him. To assist his mother he went home. He gave his mother money and thought she would be able to repay him, but it never happened. As a result he could not return to Fort Riley on time and was eventually absent without leave (AWOL). It was these issues that led to his discharge. In support of his request, he submits a statement from Dallas Metrocare Services and three letters of support.

Two of the applicant’s sisters state that during the period he was AWOL their brother-in-law and nephew were killed in a car accident. Their mother was devastated and the applicant wanted to be there to support her. They understand that he tried to go through the proper channel, but was rejected and took the only action he could. He later found out that this was a mistake, and has regretted it ever since. They are not trying to make an excuse for his action, but he has paid dearly for this mistake the last 27 years. After the less than honorable discharge the applicant became withdrawn and went into a deep depression. The discharge has kept him from getting a good job and has handicapped him severely.

A supporter indicates that the applicant has worked for him off and on for ten years and is very dependable. Whenever he calls him to work, he comes right away and takes pride in his work.

COUNSEL CONTENDS: Counsel is listed on request, but no statement is submitted.

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

He served in the United States Army Reserve from 9 February 1973 until 9 June 1973 during which time he was on active duty completing his basic training and advance individual training for electrician. He enlisted in the Regular Army on 22 June 1973, for a period of three years, at the age of 20, having completed a General Equivalency Diploma.





He served without incident until 11 January 1974, when court-martial charges were preferred against the applicant for AWOL from 4 September 1973 to 7 January 1974. After consulting with legal 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 that he understood that if his request was accepted he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He indicated that he also understood that as a result of the issuance of such a discharge, he may be deprived of many or all Army, Veterans Affairs, and Federal and State benefits. He acknowledged by his signature that he had consulted with counsel who had fully advised him in this matter. The applicant declined to submit a statement on his own behalf.

The applicant and his counsel signed a statement to the approval authority. They stated that the applicant’s primary problem was adjusting to his permanent change of station. He did not like Fort Riley, Kansas, and felt that many of the people of the surrounding civilian area were race prejudiced. He was also having trouble in adjusting to his work assignment. His military occupational specialty was electrical engineering, but he was given duty soldier details. His engineering company did not have an electrical engineering section of its own and depended on a civilian contractor for all of its electrical work. He tried to talk to his commanding officer about his adjustment problems but did not feel that these conversations offered much in the way of solving the problems. He finally became discouraged with his situation and decided to leave military control.

The appropriate authority approved his request for discharge on 23 January 1974, and directed that an Undesirable Discharge Certificate be issued.

Accordingly, he was discharged on 28 January 1974 under the provisions of Army Regulation 635-200, chapter 10.

On 8 June 1979, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

On 28 September 2000, a doctor reports that he diagnosed the applicant with major depressive disorder severe without psychotic features and is treating him with medication.

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.

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 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.

2. The Board does not question that the applicant suffered several personal problems that may have influenced him to go AWOL. However, the applicant’s records available to the Board do not contain any evidence that he made this information available to his leaders prior to his decision to go AWOL, or later to those who considered his request for a chapter 10 discharge.

3. It appears that the applicant elected to take the option of requesting an administrative discharge rather than risking the possibility of a greater sentence at trial. There is no evidence to show that he was coerced by anyone into making this choice. The Board acknowledges that the under other than honorable discharge is a permanent reflection of his service, but reminds the applicant he was discharged instead of being court-martialed. A court-martial could have resulted in a prison sentence and a permanent record of a federal conviction.

---

4. 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

________ _____ __ _______ _ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001064286
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020723
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 110.02
2.
3.
4.
5.
6.