MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 July 2002
         DOCKET NUMBER: AR2002072026

         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 a more favorable discharge.

APPLICANT STATES: In effect, that his being absent without leave (AWOL) was the result of his father’s heart condition and because he could not get a hardship discharge. He further states that it was compounded by the fact that he was expected to go back into combat 2 weeks before he was to go home. He also states that he is experiencing major problems due to chemical exposure in Vietnam and needs medical treatment.

EVIDENCE OF RECORD: The applicant's military records, though reconstructed, show:

He was inducted in Oakland, California, on 14 March 1968 and was transferred to Fort Lewis, Washington, to attend his basic combat training (BCT).

The applicant went AWOL on 30 April 1968 and remained absent until he was arrested at Beale Air Force Base, California, and was returned to military control on 22 May 1968. He was returned to Fort Lewis and nonjudicial punishment (NJP) was imposed against him on 28 May 1968. His punishment consisted of a forfeiture of pay.

He again went AWOL from 3 July to 27 July 1968, from 1 August to 10 October 1968, from 14 October to 15 October 1968, from 21 October 1968 to 10 January 1969, from 12 January to 8 February 1969 and from 10 February to 20 June 1969, when he was returned to military control at the Presidio of San Francisco, California and charges were preferred against him.

He was convicted by a special court-martial of the AWOL offenses on 11 July 1969 and was sentenced to confinement at hard labor for 6 months and a forfeiture of pay. He was transferred to the Retraining Brigade at Fort Riley, Kansas, to serve his confinement. He was subsequently transferred to Fort Gordon, Georgia, to undergo his advanced individual training (AIT).

He completed his AIT and was transferred to Vietnam on 21 December 1969, for duty as an infantry direct fire crewman. He was advanced to the pay grade of E-3 on 31 December 1969.

On 7 February 1970, NJP was imposed against him for failure to go to is place of duty. His punishment consisted of a forfeiture of pay and extra duty.

On 6 March 1970, NJP was imposed against him for violation of a lawful general regulation. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay and extra duty.

The applicant went AWOL from 29 April to 31 April 1970 and 9 July to 11 July 1970. However, the available records are silent as to any punishment imposed for those offenses.

On 14 July 1970, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of a forfeiture of pay.

Although the specifics of his offense is not present in the available records. His records contain an order which shows that NJP was imposed against the applicant on 7 September 1970 for misconduct. His punishment consisted of a reduction to the pay grade of E-1.

The facts and circumstances surrounding the applicant’s 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 at Oakland Army Base, California, on 9 September 1970, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 2 months and 29 days of total active service and had 447 days of lost time due to AWOL and confinement. He had served 9 months in Vietnam and he acknowledged at the time of separation that he had been informed of the procedures for applying to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

There is no evidence in the available records to show that he ever applied to the ADRB for an upgrade of his discharge.

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. 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 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 undistinguished 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

__kah___ __ao____ ___tl____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072026
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/07/30
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1970/09/09
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 6890	144.700/A70.00
2.
3.
4.
5.
6.