MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 April 2002
         DOCKET NUMBER: AR2002069827

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Ms. Melinda M. Darby		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 departed absent without leave (AWOL) from his unit because his mother was in the hospital dying. He claims that his mother suffered a stroke when she received a note from the government informing her that he had been killed in the Republic of Vietnam (RVN).

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

On 27 May 1968, the applicant enlisted in the Regular Army and entered active duty. He successfully completed basic combat training and advanced individual training (AIT) at Fort Leonard Wood, Missouri. He was awarded military occupational specialty (MOS) 62M (RTF&L Operator), and he was assigned to Fort Hood, Texas, for his first permanent duty station.

The applicant’s record confirms that the highest rank he held while serving on active duty was private/E-2. The record documents no acts of valor, significant achievement, or service warranting special recognition during the applicant’s tenure on active duty. However, it does contain an extensive AWOL related disciplinary history. This includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), and his conviction by a special court-martial. In addition, there is no evidence or information in his record that would indicate that he was ever placed on orders for, assigned to, or served in the RVN.

On 12 June 1968, the applicant accepted NJP for absenting himself from his place of duty. His punishment for this offense included a forfeiture of $45.00
per month for 2 months and 30 days of restriction.

On 26 March 1969, the applicant departed AWOL from his unit at Fort Hood, Texas, and remained away until returning to military control on 21 April 1969. He again departed AWOL on 3 May 1969 and remained away until returning to military control on 10 May 1969.

On 28 May 1969, the applicant was tried and convicted by a special court-martial of the two AWOL periods outlined in the preceding paragraph, and of breaking restriction on 3 May 1969. The resultant sentence included a forfeiture of $73.00 per month for 6 months, confinement at hard labor for 6 months, and a reduction to private/E-1.

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The applicant was assigned to the United States Army Correctional Training Facility (CTF), Fort Riley, Kansas, to serve his conferment and he arrived there in June 1969. Upon completion of his conferment, he was reassigned to a unit on Fort Riley, but failed to report for duty and departed AWOL on 9 August 1969. He remained away until returning to military control on 29 January 1970. On
3 February 1970, a Charge Sheet (DD 458) was prepared preferring a
court-martial charge against the applicant for this period of AWOL.

On 24 March 1970, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, which could lead to a bad conduct discharge. Counsel also advised the applicant of the effects of an UD and of the rights available to him, after which the applicant voluntarily requested discharge, for the good of the service/in lieu of trial by court-martial. In his request for discharge, the applicant acknowledged his understanding that he would be deprived of many or all Army benefits, that he would be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

On 13 April 1970, the appropriate authority approved the applicant’s request for discharge and directed that he receive an UD, and that he be reduced to the lowest enlisted grade.

On 16 April 1970, the applicant was discharged accordingly. The separation document (DD Form 214) issued to and authenticated by the applicant on the date of his separation confirms that he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by court-martial. At the time of his separation, he had completed a total of 1 year,
1 month, and 11 days of creditable active military service and he had accrued a total of 295 days of time lost due to AWOL and conferment.

There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade to his discharge 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 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. The Board notes the applicant’s contention that his misconduct was the result of the serious illness of his mother that had resulted from an incorrect notification to her by the government that he had been killed in the RVN. However, it finds insufficient evidence to support this claim.

2. The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The Board notes that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.

3. 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 and that the character of his discharge accurately reflects his overall record of service. Therefore, the Board concludes that the requested relief is not warranted.

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

__INW__ __MMD__ __JTM___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069827
SUFFIX
RECON
DATE BOARDED	2002/04/16
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1970/04/16
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.