PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 29 October 2002
         DOCKET NUMBER: AR20002075139


         I certify that hereinafter is recorded the true and complete record of the proceedings 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. Karol A. Kennedy		Chairperson
Mr. Thomas A. Pagan		Member
Ms. Barbara J. Lutz		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his undesirable discharge be upgraded to honorable, that his date of rank (DOR) on his report of separation (DD Form 214) be corrected and that two sworn statements (DA Form 2823) be removed from his records.

3. The applicant states, in effect, that his attitude about a military career was healthy until airborne training at Fort Benning, Georgia and that his conduct and efficiency ratings did not begin to diminish until he arrived at Fort Bragg, North Carolina. He goes on to state that he is not trying to justify his actions in 1973 because they were unquestionably in poor judgment and he is genuinely ashamed of his discharge status. However, he has endeavored to become a good and productive citizen of society and has provided a list of his accomplishments with his application. He further states that his profession requires him access to classified information and he has not been able to get a security clearance since the events of September 11, 2001. The inability to get a security clearance hinders his progression and he asks the Board to grant him an upgrade in order that he may continue to contribute to his country. He also states that his request is not motivated to receive veterans benefits and he is willing to sign a statement to that effect. He continues by stating that his DD Form 214 incorrectly reflects his DOR as 27 November 1923 and should read 27 November 1973. In addition, he contends that the two DA Form 2823s contained in his records are a shortsighted account of his character and are not consistent with his conduct and efficiency ratings. He further contends that the statements read as though they both discussed what to write because they both say basically the same thing. Accordingly, he believes they should be removed from his records. In support of his application he submits an account of the events of his life since his discharge, a copy of his resume’ and a copy of his records.

4. The applicant’s military records show that he enlisted in Pittsburgh, Pennsylvania, on 25 October 1972, for a period of 3 years, training in the Administrative Career Management Field and assignment to Europe. He was transferred to Fort Jackson, South Carolina, to undergo his training.

5. On 21 February 1973, while attending his advanced individual training (AIT), he volunteered for airborne training and waived the portion of his enlistment commitment pertaining to his assignment to Europe. In doing so, he acknowledged that he understood that as a result of doing so, he would be assigned in accordance with the needs of the service. He successfully completed his AIT, received excellent conduct and efficiency ratings, and was transferred to Fort Benning to undergo airborne training. He successfully completed his airborne training and was transferred to Fort Bragg on 12 April 1973, for duty as a maintenance data specialist.

6. His records show that he went absent without leave (AWOL) from 23 May through 24 May 1973 and 1 June through 12 June 1973. However, the record is silent as to any punishment imposed. He again departed AWOL on 5 July 1973 and remained absent until 26 September 1973, when he surrendered to military authorities at Fort Bragg and charges were preferred against him for the last AWOL offense.

7. A review of his records shows that on 5 October 1973, an official of the Federal Bureau of Investigation (FBI) contacted the applicant’s father in Pittsburgh, regarding the applicant’s whereabouts. His father informed the official that the applicant had turned himself in to Fort Bragg. Consequently, Army officials in Pittsburgh were notified that the FBI investigation was closed and that apprehension efforts should be terminated.

8. On 11 October 1973, 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.

9. On 17 October 1973, in connection with the processing of his request, the applicant’s officer in charge (motor officer) and his supervising noncommissioned officer (motor sergeant) made sworn statements regarding the applicant’s conduct and efficiency. The motor officer indicated that he shared supervisory responsibility with the motor sergeant and that soon after the applicant’s arrival, it became apparent that the applicant lacked the desire and initiative to be a good clerk. He was constantly late for work, exhibited a poor appearance, and his work was late and incomplete. He went on to state that he was responsible for having the applicant apprehended on his first AWOL offense, that the applicant desired to get out of the Army and had no concern of any events that occurred. The motor sergeant indicated that the applicant constantly let it be known that he had no desire to remain on active duty from the time he arrived at the unit, that he had no interest in the work he did or was supposed to do, his appearance, nor the appearance and condition of his personal belongings. The work he did get accomplished had to be done all over again. He simply would not adapt to the military.

10. On 9 November 1973, the battalion commander interviewed and counseled the applicant concerning the consequences of his request for a discharge. The applicant stated that he was well aware of the serious implications of a discharge under other than honorable conditions and expressed his lack of concern for the outcome of his actions.

11. The appropriate authority (a major general) approved his request on 27 November 1973 and directed that he be issued an Undesirable Discharge Certificate.

12. Accordingly, he was reduced to the pay grade of E-1 on 27 November 1973 and was discharged under other than honorable conditions on 11 December 1973, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 9 months and 29 days of total active service and had 97 days of lost time due to AWOL.

13. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 24 December 1980. He contended at that time that he was upset over his parent’s separation and reacted to all discipline in a negative manner, that he was upset that he was not sent to Germany in accordance with his enlistment commitment, that no extensive counseling was given to him when problems were evident, and that given his post-service accomplishments regarding his education and employment, his discharge should be upgraded. He was granted a personal appearance before that board on 7 July 1981, and was represented by counsel.

14. During his personal appearance he asserted that he had enlisted for assignment to Germany and did not understand that he would not be sent there when he waived his enlistment option to attend airborne training. He also stated that his first period of AWOL occurred after being threatened with nonjudicial punishment for being late to work. His second period of AWOL was the result of his desiring to be transferred to Germany and his superiors not understanding or supporting his desires. He also stated that he tried to do his job and simply did not want to be there. When he went AWOL, his parents did not know where he was and he went AWOL to get a discharge.

15. The ADRB determined that the applicant’s parents had separated a year before he entered the service, when he was 18 years of age, and was not contributory to his misconduct. The board also rejected his other contentions as outlined in the case summary and opined that his AWOL was a deliberate act perpetrated to attain a discharge. The ADRB determined that his discharge was equitable and properly characterized his service. The ADRB denied his application on 27 July 1981.

16. 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.

CONCLUSIONS:

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 and properly characterizes his service during the period in question.

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. While the Board commends the applicant for his post-service accomplishments, they are not sufficiently mitigating to warrant relief when compared to his undistinguished record of service during such a short period of time.

5. The Board has noted the applicant’s contention regarding the two sworn statements from his supervisors at the time and finds it to be without merit. The commissioned officer and NCO shared supervisory responsibility and it is reasonable for both individuals to have similar opinions regarding the applicant’s conduct and efficiency. It also appears that the statements supported the applicant’s efforts to have his request approved rather than to face trial by court-martial. While he may not like the statements now, they appear to properly reflect his performance at the time. Accordingly, the Board finds no basis to remove them from his records.



6. In regards to the applicant’s contentions pertaining to veterans benefits and the issuance of security clearances to civilians employed by civilian companies, this Board has no jurisdiction in those matters. The primary concern of the Board is to correct any errors or injustices that may have occurred during a member’s service. The Board finds no indication of either one in this case.

7. In regards to the error on his DD Form 214 pertaining to his DOR, the Board finds that his DOR is in fact incorrectly reflected on that document and should be corrected at this time.

8. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the DOR of the individual concerned is 27 November 1973 instead of 27 November 1923, as currently reflected on his DD Form 214 dated 11 December 1973.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__kak___ __tap ___ ___bjl___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Karol A. Kennedy_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002075139
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/10/29
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	1973/12/11
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1. 315	131.0500/DOR
2. 328	134.0000/REM DER INFO
3. 689	144.7000/A70.00
4.
5.
6.