MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 July 2002
         DOCKET NUMBER: AR2002071841

         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. Raymond V. O’Connor, Jr.		Chairperson
Mr. Richard T. Dunbar		Member
Mr. Kenneth W. Lapin		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 general discharge.

APPLICANT STATES: In effect, that he enlisted in February 1971 and while on leave, his girlfriend became pregnant. She told him that unless he married her and got out of the Army, she would take the baby to Canada and he would never see them again. Because she was of Canadian descent and her parents resided in Quebec, Canada, he knew she had the resources to follow through on her threat. When he returned to military control and explained the situation to his commander, his commander told him he could stay in or get out; however, if he got out, it would be with an undesirable discharge. He goes on to state that he was told that he could have his discharge upgraded in 6 months time and being young and foolish at the time, he never pursued it. All he cared about at the time was not losing his son. As he has grown older, he regrets not having pursued an upgrade of his discharge and desires to have it done at this time. In support of his application he submits a letter of support from a service organization, which indicates that the applicant has been an excellent citizen who supports the service organization’s activities and now that he is terminally ill, he deserves an upgrade of his discharge for serving his country.

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

He was born in New Brunswick, Canada on 28 February 1951 and enlisted in Manchester, New Hampshire on 25 February 1971, for a period of 3 years and training as an engineer equipment repairman. At the time he enlisted, he was single and a non-citizen of the United States residing in New Hampshire.

He was transferred to Fort Dix, New Jersey to undergo his basic combat training (BCT). He completed his BCT on 30 April 1971 and was transferred to Fort Belvoir, Virginia, with a report date on 14 May 1971, to undergo his advanced individual training (AIT).

On 1 June 1971, he went absent without leave (AWOL) from Fort Belvoir and remained absent until he was returned to military control at Fort Devens, Massachusetts, on 21 July 1971.

On 15 September 1971, he departed AWOL from Fort Devens and remained absent until he was returned to military control at Fort Devens on 24 April 1972, where charges were preferred against him.

On 28 April 1972, 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 also signed a benefits-discharge chart, which explained his benefits when discharged with an undesirable discharge. He further elected to submit a statement in his own behalf, whereas, he admitted that he was guilty of the AWOL offenses and asserted that he had gotten married in September 1971, that his wife had delivered a baby 4 weeks prior to his application for discharge, that she was not able to work, was destitute, and in great debt. He also asserted that he was in great debt and that he needed to be with his family. He stated that his wife would go to Canada to stay with her family and it would cause a separation he did not want to happen. He also stated that he could not adapt to Army life, that he would be of no use to the Army and that he should be discharged.

The appropriate authority (a brigadier general) approved his request for discharge on 12 May 1972 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged under other than honorable conditions on 18 May 1972, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 6 months and 16 days of total active service, was still in a trainee status, and had 273 days of lost time due to AWOL.

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. There was not then, nor is there now, 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. 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 undistinguished 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

__rtd____ ___kwl __ ___rvo __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071841
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/07/25
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1972/05/18
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.