MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 July 2002
         DOCKET NUMBER: AR2002067489

         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. Arthur A. Omartian		Chairperson
Ms. Karen A. Heinz		Member
Mr. Thomas Lanyi		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES: That his discharge should be upgraded because it was based on a single isolated incident in 22 months of service with no other adverse action and because he was not informed about the nature of the discharge he thought that he would receive a general discharge. He served in Germany for 18 months and returned to the United States to learn that his wife had left him for another man. He did not know the whereabouts of his small son. This situation caused him to have a nervous breakdown and he was incapable of making a rational decision.

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

The applicant was inducted on 20 February 1968 with a waiver for pre-service offense of driving under the influence. His record of induction lists his marital status as "separated." On 21 October 1968, at the approximate age of 19 years and 8 months enlisted in Germany for an MOS (military occupational specialty) producing course. His enlistment records list a wife and 2 year old son as dependents. He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 18 December 1968, for willfully destroying government property by breaking four windows.

On 16 May 1969 the applicant was advanced to pay grade E-3.

He returned to the United States in late 1969 and was enrolled in school as an aircraft engine repairman (MOS 68B20) at Fort Eustis, Virginia. He received NJP for absence from his place of duty. He was then absent without leave (AWOL) on 12 April 1970. He was returned to duty at Fort Belvoir, Virginia and received another NJP for AWOL from 12 April to 15 May 1970.

On 24 July 1970 the applicant was transferred to Fort Knox, Kentucky where he was assigned in his new MOS on 1 July 1970, then was reported AWOL on 8 July 1970 and was apprehended by civilian authorities on 11 November 1970.

On 16 November 1970 charges were preferred against the applicant for AWOL from 8 July 1970 until 11 November 1970. The applicant requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a punitive discharge. He indicated that he had not been

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subjected to any coercion, that he understood that he might be discharged under other than honorable conditions and receive an undesirable discharge and that such a discharge might deprive him of many or all Army and Veterans
Administration benefits. He declined to submit any statement in his own behalf and waived his right to consult with counsel. The endorsement indicating that the applicant had been advised of the basis of the contemplated trial and of the effects of this request is unsigned.

On the report of medical history that the applicant submitted for his 23 November 1970 separation medical examination the applicant indicated that he currently had or previously had frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, bed-wetting, nervous trouble, and an excessive drinking habit; however, no details were recorded. He did indicate that he had trouble in school because he did not like being made to do something that he did not want to do. The physician conducting the medical examination found the applicant fit for separation with a physical profile of 111111.

The company commander recommended separation with an undesirable discharge. The intermediate commander noted that the applicant's record contained evidence of five NJPs and concurred in that recommendation. The separation authority approved the applicant's request and directed that an undesirable discharge be issued.

On 21 December 1970 the applicant was administratively reduced to pay grade E-1 and separated with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 10.

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.

The Uniform Code of Military Justice, Table of Maximum Punishments shows that a punitive discharge is authorized for any AWOL of 30 days or more.

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Department of Defense Directive 1332.28 provides the policy and guidance for discharge review. It provides, in pertinent part, that when it is determined that the rights of an individual were prejudiced by an error of fact, law, procedure or discretion such error will be considered material if there is substantial doubt that the discharge would have remained the same if the error had not occurred.
 
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 contentions of the applicant have been noted by the Board. However they are not supported by the evidence submitted with the application or the evidence of record.

2. The applicant acknowledged that he understood the consequences of a discharge under other than honorable conditions, and that the undesirable discharge might deprive him of many or all Army and VA benefits. He was afforded the opportunity to submit statements in his own behalf, but he declined to do so. The fact that the individual advising him of his rights did not sign the election of rights document is not a material error. Because, there is no substantial doubt that the discharge would have remained the same if the error had not occurred.

3. The applicant's administrative separation was accomplished in substantial compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. His service is properly characterized by the offenses for which he requested discharge in order to escape trial by court-martial.

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.

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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

__AAO__ __KAH___ __TL ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067489
SUFFIX
RECON
DATE BOARDED	20020730
TYPE OF DISCHARGE	UD)
DATE OF DISCHARGE	1970/12/20
DISCHARGE AUTHORITY	AR635-200, Ch 10 . . . . .
DISCHARGE REASON
BOARD DECISION	NC
REVIEW AUTHORITY	A70.00
ISSUES 1.
2.
3.
4.
5.
6.