MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 September 2002
         DOCKET NUMBER: AR2002074461

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Barr		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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES: In effect, that his ability to serve was impaired by his youth and immaturity. He contends that he was married and just 19 years old at the time he was drafted. He goes on to state that he got into debt and that his income from the Army was not enough to pay the bills; therefore, financial problems led to his decision to go absent without leave (AWOL). He claims that he got his old job back and was getting caught up on their bills; however, he kept thinking the Federal Bureau of Investigation would come to take him back to the Army. Nine years later, he states that an agent phoned and told him to report back, which he did. He contends that he reported back on Sunday and was told on Tuesday that he had been discharged and could go home. When he applied for medical assistance through the Department of Veterans Affairs he learned that he had a bad conduct discharge. He contends that if he had been given a court-martial where he could have had an opportunity to explain the circumstances he would not have been given such harsh treatment. He further states that since his discharge, he has been a good citizen, maintained stable employment, paid his taxes and has been a registered voter. In support of his application, he submits a character reference letter, dated 7 November 2001, from the Mayor of Eldorado, Illinois; a copy of his voter registration card; an undated character reference letter; and a copy of his DD Form 214 (Report of Separation from Active Duty).

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

The applicant was inducted into the Army of the United States on 10 February 1969. He was 19 years and 10 months old at the time of his induction.

While in combat basic training, nonjudicial punishment was imposed against the applicant on 4 March 1969 for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a forfeiture of pay.

On 5 September 1969, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 2 October 1969, the applicant received orders to report to the Oversea Replacement Station at Oakland, California, no later than 11 November 1969 for further assignment to Vietnam.

Records show the applicant went AWOL on 11 November 1969 and surrendered to military authorities on 1 February 1978.

On 6 February 1978, charges were preferred against the applicant for being AWOL from 11 November 1969 to 1 February 1978.

On 7 February 1978, 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. He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. He elected to make a statement in his own behalf. In summary, he contends that he went AWOL due to financial problems. He stated that he did not like the Army and that if his request for discharge was approved he could go home and run his business and pay his bills.

The intermediate commanders recommended that the applicant’s request for discharge be approved and that he be furnished a discharge under other than honorable conditions.

On 30 March 1978, the separation authority approved the applicant’s request for discharge and directed that he be furnished a discharge under other than honorable conditions.

Accordingly, the applicant was discharged under other than honorable conditions on 1 May 1978 under the provisions of Army Regulation 635-200, chapter 10. He had served 11 months and 27 days of total active service with 3008 days of lost time due to AWOL.

There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that 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, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 contention that he was young and immature at the time in question is not sufficiently mitigating to warrant relief. The Board notes that the applicant was almost 20 years old at the time of his induction.

2. The Board noted the applicant’s claim of financial problems which led to his decision to go AWOL. However, these matters are not grounds for upgrading his discharge.

3. The applicant’s contention that he has a bad conduct discharge is not supported by the evidence of record. Evidence of record shows that the applicant received a discharge under other than honorable conditions.

4. The Board considered the applicant’s contention that if he had been given a court-martial and had an opportunity to explain the circumstances he would not have been given such harsh treatment. However, evidence of record shows the applicant voluntarily submitted a request for discharge in lieu of trial by court-martial.

5. The Board also considered the character reference letters submitted in support of the applicant’s claim and the applicant’s contentions regarding his good post service conduct. However, good post service conduct alone is not a basis for upgrading a discharge.

6. The Board reviewed the applicant’s record of service which included two nonjudicial punishments and 3008 days of lost time and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. The Board also determined that his service was not satisfactory. Therefore, the applicant is not entitled to an honorable discharge or a general discharge.

7. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

8. 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.

9. 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

FNE____ BJE_____ WDB____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074461
SUFFIX
RECON
DATE BOARDED	20020910
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19780501
DISCHARGE AUTHORITY	AR 635-200 Chapter 10
DISCHARGE REASON	For the good of the service
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.