MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 September 2002
         DOCKET NUMBER: AR2002072412

         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
Mr. Kenneth W. Lapin		Member
Mr. Donald P. Hupman, Jr.		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 a general or medical discharge.

APPLICANT STATES: In effect, that an important letter written by a family doctor to officials at Fort Lewis, Washington, in 1971 was not considered at the time of his discharge, which should have resulted in his being issued a general or medical discharge. He goes on to state that from the very beginning, when he was inducted, he was homesick and experienced more difficulty than most in adjusting. Shortly after completing his training, he was married and was assigned to Fort Lewis. He continues by stating that his ability to adjust became worse and he sought medical help and counseling. He was granted leave to go home and bring his wife back. While at home he began to have suicidal thoughts and sought help from his family doctor, who placed him on medication and contacted his commanding officer. He (family doctor) also wrote his commander a letter explaining his condition and recommending that he be given light duty and be allowed to remain stateside. He contends that he was told that in all likelihood, he would remain in the States for the remainder of his time. He also states that in June 1971, he received orders to report to Fort Dix, New Jersey for transfer overseas. It was not until he arrived at Fort Dix did he discover that he was being transferred to Vietnam. Feeling betrayed and knowing how serving Vietnam had affected many others, he went absent without leave (AWOL), returned to his home and found a job. It was not until 4 ½ months later that he turned himself into Fort Bragg, North Carolina. He further states that he was told what the provisions for discharge were but never what the provisions for staying in were and that it was not until his discharge did he realize that he was receiving an undesirable discharge. He contends that while he was wrong for what he did and has lived with it for many years, the Army could have done a better job of explaining his rights and providing better counsel. In addition, while he cannot find the letter from his family doctor, his condition was such that he should have received a general or medical discharge. He also states that he has been a good citizen and father since his discharge and that he is heavily involved in church activities in his community.

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

He was inducted in Roanoke, Virginia, on 13 October 1970. He completed his training at Fort Campbell, Kentucky, and was transferred to Fort Lewis, Washington, for duty as a wheel vehicle mechanic. He was advanced to the pay grade of E-3 on 9 March 1971.

On 8 May 1971, orders were published which directed that the applicant proceed to the Overseas Replacement Station in Oakland, California, for transfer to Vietnam on 14 July 1971. Those orders were amended on 25 May 1971 to reflect a report date of 17 July 1971.

It appears that the applicant went AWOL on 8 July and remained absent until he turned himself into Fort Bragg and requested to be attached pending a medical evaluation and possible deletion from overseas assignment. He was attached to Fort Bragg on 16 July 1971, the same day he turned himself in. He again went AWOL from 20 July to 22 July 1971 and 23 July to 26 July 1971. It appears that his orders were changed assigning him to Fort Dix, for movement overseas.

He departed Fort Dix on 26 August 1971 in an AWOL status and remained absent until he surrendered to military authorities at Fort Bragg on 10 January 1972, where charges were preferred against him for the AWOL charges.

On 6 February 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 further declined the opportunity to submit matters in his own behalf.

The battalion commander personally interviewed the applicant and the applicant indicated that he was aware of the nature of the interview and the consequences of an undesirable discharge; however, he still desired elimination from the service. He further indicated that he went AWOL because he did not desire to go overseas and that his wife was near the point of giving birth to their first child and he wanted to be present for the occasion.

The garrison commander (a colonel) indicated that based on his interview with the applicant, and his stated desire to continue to go AWOL until he got a discharge, rehabilitation would serve no purpose to the individual or the Army.

The appropriate authority approved the applicant’s request for discharge and directed that he be furnished with an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 1 March 1972, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 8 months and 2 days of total active service and had 152 days of lost time due to AWOL.

He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 8 April 1974. He contended at that time that he simply could not adjust to military life, that he had been a good citizen since his discharge and that he did not want to lose his job or his new home because his employer discovered the type of discharge he received. The ADRB determined that he had been properly discharged and denied his request on 24 July 1974.

A review of the available records fails to show any letter written by a civilian physician in his behalf. His records show that he underwent a mental, physical and medical evaluation at the time of his separation processing and was found fit for separation.

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 have been considered by the Board. However, they are not sufficiently mitigating to warrant relief when compared to his overall record of service. The Board finds no evidence to support his contentions that he was not properly advised of the consequences of his request or that he was poorly represented by counsel. The evidence of record clearly indicates that his chain of command attempted to make him aware of the consequences of an undesirable discharge at the time and he (the applicant) was adamant that he desired to be discharged with an undesirable discharge rather than comply with his orders. While the Board commends the applicant on his good post-service conduct, that in itself is not sufficient to warrant an upgrade of a duly constituted discharge which properly reflects his service at the time.

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

_kwl ____ __dh____ __ao____ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002072412
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/24
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1972/03/01
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.