MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 July 2002
         DOCKET NUMBER: AR2002071649

         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. Jennifer L. Prater		Chairperson
Mr. Hubert O. Fry		Member
Ms. Gail J. Wire		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 a more favorable discharge.

APPLICANT STATES: In effect, that he came from an alcoholic family and was removed from the home at the age of four by child protective services. He lived in foster homes and juvenile homes and for a short time, lived on the streets. He enlisted in the Army at the age of 18 with an alcohol and drug habit and continued with those habits at every opportunity. He goes on to describe his drug use in Vietnam and Fort Hood, Texas, and states that he deserved everything that he got in the way of disciplinary action. He continues by stating that he has turned his life around and is active in his community, is very involved with his son and his activities and remains involved in rehabilitation programs. He also states that he has been able to recognize his disease and problems of his youth and deal with it. As a result, he has had a successful working career and now is asking forgiveness for the actions of his troubled youth. He asks not for justice, because justice was served at the time, but mercy for a man who is a good man and father and who has carried the shame of his youth for so long. In support of his application, he submits 18 third party letters of support and character references.

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

The applicant was born on 27 December 1952 and enlisted in Los Angeles, California on 14 January 1971, for a period of 3 years and training as an aircraft power train repairman.

He completed his training and was transferred to Vietnam on 22 July 1971. He was advanced to the pay grade of E-4 on 8 August 1971. He completed his tour in Vietnam on 15 July 1972 and was transferred to Fort Hood, Texas, on 29 August 1972.

On 5 October 1972, nonjudicial punishment (NJP) was imposed against him for operating his privately owned vehicle on post without a post registration and for speeding. His punishment consisted of a reduction to the pay grade of E-3 (suspended for 60 days), a forfeiture of pay and extra duty.

On 4 January 1973, NJP was imposed against him for being absent without leave (AWOL) from 26 December 1972 to 1 January 1973. His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay, extra duty and restriction.

On 9 February 1973, NJP was imposed against him for being AWOL from 22 January to 1 February 1973. His punishment consisted of a reduction of two grades to E-1 (one grade, E-2 suspended for 180 days), a forfeiture of pay, extra duty and restriction.
On 1 March 1973, NJP was imposed against him for being AWOL from 15 February to 23 February 1973. His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 5 April 1973, NJP was imposed against the applicant for three specifications of failure to go to his place of duty. His punishment consisted of a forfeiture of pay, extra duty and restriction.

The applicant went AWOL on 17 April and returned to military control on 23 April 1973. He again departed AWOL on 7 May and remained absent until he was returned to military control on 25 July 1973, where charges were preferred against him.

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records. However, his records do contain a duly constituted report of separation (DD Form 214), signed by the applicant, which shows that he was discharged under other than honorable conditions on 24 September 1974, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 2 years, 4 months and 24 days of total active service and had 109 days of lost time due to AWOL.

There is no indication in the available records to show that the applicant 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 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 is normally considered appropriate and there are not now nor have there ever been any provisions for an automatic upgrade of such a discharge.

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 the absence of evidence to the contrary, it must be presumed that 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 seriousness of the charges against him.

4. The applicant’s contentions, supporting documents and his honesty in admitting that he was guilty of the charges against him, have been noted by the Board. The Board applauds the applicant’s efforts to turn his life around, however, they are not sufficiently mitigating to warrant relief when compared to the length of his absences and his otherwise undistinguished record of service.

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

___hof___ __gw___ ___jlp ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071649
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/07/23
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1973/09/24
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.