MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 October 2002
         DOCKET NUMBER: AR2002072639

         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. Joann H. Langston		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Richard T. Dunbar		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 at least a general discharge.

APPLICANT STATES: The applicant has offered no argument or evidence to support his application.

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

He was inducted in Cleveland, Ohio, on 30 March 1967, and was transferred to Fort Benning, Georgia, to undergo his basic combat training (BCT). He successfully completed his BCT and was transferred to Fort McClellan, Alabama, to attend a Leadership Preparation Course (LPC). He completed the LPC and was transferred back to Fort Benning to attend advanced individual training (AIT) as an infantryman. While in AIT he applied for and was accepted for Officer Candidate School (OCS). He completed his AIT and reported to OCS on 18 September 1967.

He departed Fort Benning, Georgia, on 16 December 1967, on Christmas leave, with a return date of 2 January 1968. He failed to return and was reported as absent without leave (AWOL). A commander’s inquiry was conducted to determine the probable causes or motives for his absence and the commander discovered that the applicant was an only child and the sole supporter of his mother, who was in poor health. He had been advised by his tactical officer of the procedures for applying for a hardship discharge and never followed through with the instructions he had been given. He remained absent until he was apprehended by civil authorities on 28 June 1968. He was confined by civil authorities until 2 July 1968, when he was returned to military control at Fort Meade, Maryland, and charges were preferred against him for the AWOL offense.

He was convicted by a summary court-martial on 12 July 1968, of being AWOL from 2 January through 28 June 1968. He was sentenced to perform hard labor without confinement for 45 days and a forfeiture of pay (suspended for 4 months).

He received orders for assignment to Vietnam and went AWOL on 7 November 1968. He remained absent until he was apprehended by civil authorities on 17 March 1970. He was again confined by civil authorities and was returned to military control at Fort Meade on 24 March 1970, where charges were preferred against him.

On 2 April 1970, 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 to submit a statement in his own behalf.

The appropriate authority approved his request on 11 May 1970 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 11 May 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 23 days of total active service and had 685 days of lost time due to AWOL and confinement by civil authorities.

In 1972, he applied to the Army Discharge Review Board (ADRB) requesting that his discharge be upgraded to either an honorable discharge by reason of hardship or medical disability. In support of his application he submitted an undated Application for Hardship or Dependency Discharge (1AA Form 549) with supporting documents that he had received prior to going AWOL and that was never submitted. The ADRB determined that there was no evidence of error or injustice in his case and denied his application on 7 August 1972.

He again applied to the ADRB on 29 August 1984, contending that his discharge was unfair because he had an excellent record of service until his mother got sick and he had to go home to take care of her. He also contended that it was unfair because he had injured his wrist during training and because of the mitigating circumstances, he should have been given either a medical or hardship discharge. He was granted a personal appearance before the ADRB traveling panel in Cleveland, Ohio, on 16 August 1985. He appeared before that board represented by counsel and contended that he had voluntarily returned to his unit after the first AWOL and that he had applied for a hardship discharge as directed. He further contended that given his mitigating circumstances and the fact that he had injured his wrist during training, he should have been given a medical or hardship discharge.

The ADRB determined that the applicant had injured his wrist during training and that after receiving treatment, he was cleared for retention or separation. The ADRB also determined that he had been apprehended by civil authorities after both periods of AWOL and that he had not submitted his application for hardship discharge as he asserted. The ADRB determined that he had been properly informed of the procedures for applying for a hardship discharge and that there was no error or injustice in his case. The ADRB voted unanimously to deny his application on 16 August 1985.

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 Board has noted that the applicant may have had mitigating circumstances that contributed to his going AWOL. However, he was afforded the opportunity to apply for a hardship discharge and did not do so before he decided to go AWOL. Accordingly, the Board finds that the characterization of his discharge appropriately reflects his 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

__mvt___ ___jhl___ __rtd____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072639
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/10/17
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1970/05/11
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.