MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 July 2002
         DOCKET NUMBER: AR2002071500

         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:

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: In effect, that his undesirable discharge be upgraded to an honorable or general discharge by reason of medical disability.

APPLICANT STATES: In effect, that he was depressed most of his life and always felt that something was not normal about the way he felt. He was finally correctly diagnosed with major depression in 1994 and believes that during the times he went absent without leave (AWOL) and when he shot himself in the foot, that his symptoms were exacerbated and he was having a mental breakdown. In support of his application he submits an unofficial letter from his psychiatric therapist.

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

He was born on 24 November 1948 and was inducted in Louisville, Kentucky, on 20 May 1968. At the time of his induction, he indicated that he was married and his wife’s date of birth was 6 November 1950.

He was transferred to Fort Knox, Kentucky, to undergo his basic combat training (BCT) and upon successful completion of his BCT, he remained at Fort Knox to undergo advanced individual training (AIT) as an armor intelligence specialist.

On 17 September 1968, nonjudicial punishment was imposed against him for being AWOL from 17 August to 18 August 1968. His punishment consisted of a forfeiture of pay, extra duty and restriction.

The evidence of record also shows that on 18 August 1968, while in an AWOL status, the applicant shot himself in the foot with a rifle and was admitted to a hospital in Pineville, Kentucky. The injury required the amputation of a left toe. A line of duty investigation was conducted, which ruled the injury as “Not in Line of Duty – Not due to own misconduct.” During the course of the investigation the investigating officer discovered that the applicant had gone squirrel hunting when the rifle went off accidentally. There were no witnesses known of and the attending physician opined that there was no foul play involved and that the applicant was of sound mind at the time.

On 15 October 1968, he was convicted by a summary court-martial of being AWOL from 19 September to 26 September 1968 and for breaking restriction. He was sentenced to a forfeiture of pay and confinement at hard labor for 7 days (suspended for 2 months).

On 20 October 1968, he again went AWOL and remained absent until he was returned to military control at Fort Leonard Wood, Missouri, on 3 May 1969, where he was placed in minimum custody and charges were preferred against him.

He was convicted by a special court-martial on 20 June 1969, of being AWOL from 20 October 1968 through 2 May 1969, and for violating the conditions of his minimum custody on 14 May 1969. He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

On 7 July 1969, he again went AWOL and remained absent until he was returned to military control at Fort Leonard Wood on 11 May 1971 and charges were preferred against him.

On 1 July 1971, 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 that his entire military career had been nothing but a hardship because of the conflict between his family and himself and because he did not believe that he could adjust to military life or conduct himself in a military manner. He also stated that he did not believe he could resolve his problems by staying in the military.

The applicant underwent physical and medical examinations and was found fit for retention or separation as the chain of command deemed appropriate. However, such examinations are not required for separation under the provisions of Army Regulation 635-200, chapter 10.

The appropriate authority (a major general) approved his request on 28 July 1971 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 6 August 1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 6 months and 24 days of total active service and had 604 days of lost time due to AWOL and confinement prior to the expiration of his term of service (ETS) and 355 days of lost time subsequent to his ETS.

There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations. There is also no evidence in his records to suggest that he sought the assistance of the chain of command to resolve his problems.


The supporting statement provided by the applicant with his application from his psychiatric therapist provides a second hand history of the applicant’s impoverished and abused childhood background. She contends that his background served as the foundation/cause of his current diagnoses of Major Depression, severe, Recurrent, with Psychosis.

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 extensive length of his absences and his otherwise undistinguished record of service during such a short period.

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 undistinguished record of service. While the applicant may have recently been diagnosed with depression, there is nothing in the available records to show that such was the case at the time. Notwithstanding his current diagnosis, he requested a discharge and his request was granted.

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

___kah__ __ao____ ___tl ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071500
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/07/30
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1971/08/06
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.