MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 October 2002
         DOCKET NUMBER: AR2002074953

         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. Fred N. Eichorn		Chairperson
Ms. Shirley L. Powell		Member
Mr. Elzey J. Arledge, 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)

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APPLICANT REQUESTS: That his undesirable discharge be upgraded to a general discharge.

APPLICANT STATES: In effect, that he does not feel that he should have gotten an undesirable discharge for being absent without leave (AWOL) for 36 days. He goes on to state that at the time he went AWOL, he was having marital problems and he went home to work things out with his wife because she was tired of being alone due to his having been gone for 14 months. He further states that he requested leave after returning from Vietnam and was denied because he was in transit to Fort Dix, New Jersey, from Fort Lewis, Washington. He continues by stating that he went home to Pennsylvania and was confined for 14 days. His records had been lost and he was placed in a holding barracks until he was released and given his report of separation (DD Form 214). The only thing he can remember doing in service was being late coming back from a couple of passes and getting into a couple of fights. He does not even remember what the fights were about but all he got for those offenses were extra duty and kitchen police. He further states that he was young and stupid at the time but he was in love and wanted to make his marriage work. He also states that he believes that after 4 ½ years of serving his country, he deserves better than an undesirable discharge. In support of his application he submits character references from his brother, sister-in-law and ex-wife as well as a criminal records check.

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

He enlisted in Los Angeles, California, on 17 June 1966, for a period of 3 years and training in the automotive maintenance career group. He was single at the time of his enlistment.

He completed his basic training at Fort Bliss, Texas and his advanced individual training at Fort Ord, California. On 8 November 1966, he was transferred to Korea, where he served as a track vehicle mechanic and infantryman. He was advanced to the pay grade of E-4 on 12 May 1967.

On 30 August 1967, he was honorably discharged for the purpose of immediate reenlistment. He reenlisted on 31 August 1967, for a period of 6 years and training as an airplane repairman. He departed Korea on 18 October 1967 and was transferred to Fort Eustis, Virginia, to undergo training.

He went AWOL from Fort Eustis from 3 June to 6 June 1968 and nonjudicial punishment was imposed against him for that offense. His punishment consisted of a reduction to the pay grade of E-3. He completed his training and volunteered for duty in Vietnam. He was transferred to Vietnam on 2 January 1969, for duty as an aircraft engine repairman.

On 3 March 1969, he was convicted by a special court-martial of being AWOL from 25 January to 12 February 1969. He was sentenced to confinement at hard labor for 6 months (suspended for 6 months), reduction to the pay grade of E-1 and a forfeiture of pay.

Although not explained in the available records, he departed Vietnam as a patient and was transferred to Walter Reed Army Medical Center in Washington, D.C. on 17 July 1969.

While assigned to the medical holding detachment, he received assignment instructions to report to Fort Eustis on 29 July 1969. The applicant went AWOL from Fort Eustis on 13 August 1969 and the commander notified the applicant’s wife that he was AWOL and encouraged her to advise him to turn himself in. He remained absent until he surrendered to military authorities at Fort Dix on 13 January 1970, where charges were preferred against him.

He was convicted by a special court-martial on 29 January 1970 of being AWOL from 13 August 1969 to 13 January 1970. He was sentenced to confinement at hard labor for 2 months, a reduction to the pay grade of E-1 and a forfeiture of pay. He was transferred to Fort Monmouth, New Jersey to serve his confinement and then back to Fort Dix.

On 3 May 1970, he was transferred back to Vietnam for duty as a rifleman. He was advanced from the pay grade of E-1, through the ranks, to the pay grade of E-4 on 20 December 1970.

Meanwhile, on 24 September 1970, the applicant submitted a request for a 6-month foreign service tour extension in Vietnam. His request was approved on 27 September 1970 and he was granted a 30-day special leave for his extension. He departed Vietnam on 3 February 1971 on his 30-day leave with a return date of 20 March 1971. The applicant failed to report as ordered and was reported as AWOL effective 20 March 1971.

His commander in Vietnam conducted an inquiry to ascertain why the applicant went AWOL and found no evidence to indicate the applicant was having any problems. He did find three members of the applicant’s unit who had seen the applicant in the airport in Chicago, Illinois, on 21 February 1971. He also indicated that the only indication of the applicant’s intent not to return was the complete absence of all of his personal effects.

He remained absent until he was apprehended by civil authorities in Pittsburgh, Pennsylvania, on 5 June 1971 and was returned to military control at Fort Meade, Maryland, where charges were preferred against him on 24 June 1971.

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 elected to not submit a statement in his own behalf.

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

Accordingly, he was discharged under other than honorable conditions (with temporary records) on 27 July 1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 3 years, 10 months and 26 days of active service during his current enlistment and 5 years, 1 month and 11 days of total active service. He had 298 days of lost time due to AWOL and confinement.

There is no indication in the available records to show that he ever sought assistance for any problems, that he applied for a compassionate reassignment or that he made any attempt to make his chain of command aware that he was experiencing problems.

There is also no indication 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.

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 and his history of absences during the enlistment in question.

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 service. While the applicant did serve in Vietnam, his disciplinary record as well as the lack of evidence to explain his misconduct clearly warranted the discharge he received.

5. While the applicant contends that he was having marital difficulties, he made no attempt to explain the reasons when he had the opportunity to do so nor is there evidence that he sought assistance for his problems. The Board also notes that he established a pattern of going AWOL well before his records indicate that he was married.

6. 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.

7. 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

___fe ___ ___slp __ __eja____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074953
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/10/22
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1971/07/27
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.