MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 September 2002
         DOCKET NUMBER: AR2002068441

         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
Mrs. Judy Blanchard-Miller		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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: In effect, that his undesirable discharge (UD) be upgraded.

APPLICANT STATES: In effect, that he had serious personal problems. In May 1971, he joined the Army and in February 1973, he received an honorable discharge. Shortly after reenlisting his oldest brother was shipped back to the states, because of a mental breakdown, not even a year later his 8-year old brother was killed, his mother was not doing well and his wife was having problems. In June 1973, he received order to go to Germany, after being assigned to Germany and after talking to a chaplain; it was recommended that he take leave. When he returned home he was confronted with all the problems and he went absent without leave (AWOL). After returning to military control and receiving a summary court-martial, he received order to Fort Lewis, Washington. He again went AWOL because of family problems. He believes, that he was a good soldier up until the tragedy. He also believes, that if he could have been stationed closer to home; he would have finished his second term of service or even tried to make a career out of the Army. He further states, that he loves his country and would fight for his country. The applicant submits a letter in support of his application.

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

On 13 May 1971, the applicant enlisted in the Regular Army for a period of
3 years. He completed the required training and was awarded military occupational specialty 13A10 (Field Artillery Basic). On 15 February 1973, after serving 1 year, 9 months and 3 days of honorable active service, he was honorably discharged for the purpose of reenlisting. On 16 February 1973, the applicant reenlisted for 6 years. The highest grade he achieved was pay grade E-4.

In November 1973, the applicant was assigned to a unit in Germany. On 14 February 1974, the applicant went on an ordinary 30-day leave. On 18 March 1974, the applicant failed to return to Germany from leave and was reported for being AWOL. On 5 August 1974, the applicant surrendered to military authorities at Fort McClellan, Alabama.

On 29 August 1974, the applicant was convicted by a summary court-martial of being AWOL from 13 March to 5 August 1974. He was sentenced to a forfeiture of $242.00 pay and a reduction to pay grade E-2.

In October 1974, the applicant failed to report to a replacement company at Fort Lewis, Washington. On 8 October 1974, the applicant was reported for being AWOL. The Federal Bureau of Investigation apprehended him on 28 February 1975.

On 6 March 1975, court-martial charges were preferred against the applicant of being AWOL from 8 October 1974 to 28 February 1975.

On 12 March 1975, a physical examination found the applicant fit for retention.

On 18 March 1975, after consulting with legal counsel the applicant voluntarily without any coercion requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. The applicant acknowledged, that he understood the elements of the offense charged. The applicant waived further rehabilitation and was advised of the effects of a discharge under other than honorable conditions. He acknowledged that he understood, that he might be deprived of many or all Army and Veterans Administration benefits. He was afforded the opportunity to submit statements in his behalf. The applicant stated in effect, that if he stayed in the Army, he would go AWOL again. So, he rather get out of the military with a chapter 10, discharge, instead of staying in the Army and being married too. He tried being away from his wife and it did not work out. So if he stayed in and was confined, he would only escape and end up getting a worse discharge. He also stated, that at the rank of E-2, he could not live off the Army pay and support a wife and two children.

On 19 March 1975, the company commander, recommended approval of the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10. The commander’s decision was based on the applicant’s reluctance to adjust to military service.

On 24 March 1975, the Commanding General approved the applicant’s request for discharge, reduced the applicant to the lowest enlistment grade and directed the issuance of an Undesirable Discharge Certificate. On 28 April 1975, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UD. During this enlistment, he completed 1 year, 4 months and 29 days of creditable active military service with 288 days time lost.

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. An undesirable discharge is normally considered appropriate.

On 22 June 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

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 a UD.

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. 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.

2. 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. There is no indication that the request was made under coercion, duress or that his rights were violated in any way.

3. There is no evidence of record to show that military authorities were aware of the type or extent of his personal problems. The Board notes that the applicant submitted a statement during his discharge process, which indicated that he wanted out of the military because he did not want to be away from his wife and children and that if returned to duty he would go AWOL again and received a worse discharge. There is no other evidence in his available record that supports his allegation.

4. While the Board is empathetic, the applicant's personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

5. Therefore the type of discharge directed and the reasons were appropriate considering all the facts of the case.

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6. In view of the foregoing, there is no basis for granting the applicant’s requests.

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

__CLA__ ___MHM___ __JTM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002068441
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/05
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	1975/04/28
DISCHARGE AUTHORITY	AR635-200, chapter10 . . . . .
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.144.7000
2.
3.
4.
5.
6.