MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 July 2002
         DOCKET NUMBER: AR2002071415

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Thomas B. Redfern, III		Member
Mr. Roger W. Able		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES: That his discharge was inequitable because it was based on one isolated incident in 26 months of service. He goes on to state that he made a foolish mistake as a young man that he deeply regrets and that he lived his life before and after the incident without any actions that would justify the discharge he was given. He continues by stating that he had no adverse action and served a tour in Vietnam. He further states that he has three children who have or are still serving in the Army and it has become a serious matter for him to have his discharge reflect the way he served his country, honorably.

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

He was born on 1 November 1952 and enlisted in Little Rock, Arkansas, on 12 January 1971, for a period of 3 years and training in the automotive maintenance career management field. At the time of his enlistment, he indicated that his parents lived at separate addresses and he listed no siblings in the family other than himself.

He completed his basic combat training at Fort Campbell, Kentucky, and was transferred to Fort Leonard Wood, Missouri, to undergo his advanced individual training (AIT) as a wheel vehicle mechanic. He completed his AIT and was transferred to Fort Knox, Kentucky, to attend a service school for training as a track vehicle mechanic. He successfully completed that training and was transferred to Vietnam on 9 August 1971. He was advanced to the pay grade of E-3 on 14 August 1971 and to the pay grade of E-4 on 15 October 1971.

On 13 April 1972, he was honorably discharged for the purpose of immediate reenlistment. He reenlisted on 14 April 1972 for a period of 3 years and assignment to Fort Knox. He departed Vietnam on 11 June 1972 and reported to Fort Knox on 31 July 1972.

On 30 August 1972, he went absent without leave (AWOL) and remained absent until he was apprehended by civil authorities and was returned to military control on 29 September 1972, where charges were preferred against him.

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, in lieu of trial by court-martial. In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. He further elected to submit a statement in his own behalf whereas he asserted, in effect, that after his return from Vietnam, the situation at home had deteriorated to the point that his mother was raising his siblings by herself, because his father had deserted the family and his mother needed his help. He indicated that he simply could not abandon his family in their time of need and felt that it would be best for him to go back to his family and help them.

The company commander recommended that he be issued a general discharge. The battalion commander recommended that his request be disapproved and that the applicant be rehabilitated.

He again went AWOL on 7 October 1972 and remained absent until he was apprehended by military authorities and was again returned to military control on 3 February 1973, where he was placed in confinement.

The appropriate authority (a major general) approved his request on 6 March 1973 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 6 March 1973, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 7 months and 27 days of total active service and had 181 days of lost time due to AWOL and confinement.

A review of the applicant’s records fails to show that he ever attempted to apply for a hardship discharge or compassionate reassignment. However, his records are void of any disciplinary actions ever being taken against him.

There is also no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 charges have been preferred, submit a voluntary request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions was at that time and is still 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. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the length of his absences during a short period of time.

4. The applicant’s contentions and supporting documents have been considered by the Board. However, they are not sufficiently mitigating to warrant relief when compared to his overall record of service.

5. 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.

6. 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

__jhl ____ ___tbr___ __rwa___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002071415
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	07/09/02
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1973/03/06
DISCHARGE AUTHORITY	AR635-200/ CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00
2.
3.
4.
5.
6.