MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 September 2002
         DOCKET NUMBER: AR2002075317

         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. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Karen Y. Fletcher		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 (UD) be upgraded to general and his records show he received his GED (general equivalency diploma).

APPLICANT STATES: That he has been good for over 30 years and a Judge Advocate General told him that he could have his discharge changed to general. He also states that he received his GED from the Army at Fort Ord, California. He also states that he attended school for 2 months in Special Forces training.

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

He was inducted in the Army of the United States as a private, pay grade E-1, on 15 November 1971.

On 2 March 1972, he was reported absent without leave (AWOL). He surrendered to military authorities on 6 May 1972.

On 16 May 1972, court-martial charges were preferred against the applicant. The applicant stated to his commanding officer that he desired to be released from the Army and that he would continue to go AWOL until his release.

On 18 May 1972, through counsel, the applicant requested discharge for the good of the service in lieu of court-martial, under the provisions of Army Regulation 635-200, Chapter 10. He stated that in basic training he went AWOL for 57 days because he hated the Army and he refuses to train and if he is not discharged from the Army as soon as possible, he will go AWOL again. He also acknowledged he understood the effects of this type of discharge.

On 30 May 1972, his commander recommended approval of the applicant's request and recommended a UD be issued based on the applicant's previous record and present attitude making further efforts at rehabilitation impractical.

On 16 June 1972, the appropriate authority approved his discharge. It was directed that the applicant be issued a UD certificate.

He was discharged on 27 June 1972 under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. He was credited with 5 months and 5 days total net service. He had 68 days lost time due to AWOL.

He enlisted in the Regular Army for 3 years, in pay grade E-1, on 7 August 1974. He enlisted at Fort Leonard Wood, Missouri. At the time of his enlistment, he did not indicate that he had prior service or a UD.



He was reported AWOL on 9 September and returned to military control on 17 September 1974.

He was reported AWOL on 20 September 1974 and dropped from the rolls.

He was returned to military control on 6 January 1975.

On 4 February 1975, his commander requested that the applicant be discharged under the provisions of Army Regulation 635-200, Chapter 14 for his fraudulent enlistment into the military service. The commander stated that at the time of the applicant's enlistment, the applicant failed to report having any previous service, or having received a discharge under other than honorable conditions. The commander also stated that the applicant's conduct and efficiency ratings were unsatisfactory.

On 29 February 1975, through counsel, the applicant acknowledged receipt of the proposed action to discharge him for fraudulent entry. He waived his rights to have his case considered by a board of officers and to submit a statement in his own behalf. He also acknowledged he understood the effects of this type of discharge.

On 17 March 1975, the appropriate authority approved his discharge. It was directed that the applicant be issued a UD certificate.

He was discharged under the provisions of Army Regulation 635-200, Chapter 14 for fraudulent entry on 17 March 1985. He was credited with 8 months and 18 days total active service. He had 118 days lost time due to AWOL.

On 10 January 1978, the Army Discharge Review Board denied his request for an upgrade of his discharge.

His records do not show he received a GED while in the service. His records show he completed 7 years of general education.

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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of a UD.



Army Regulation 635-200 sets for the basic authority for the separation of enlisted personnel on active duty. Chapter 14, in effect at the time, contained the policy and outlined the procedures used in separating individuals for fraudulent entry. It provided, in pertinent part, that fraudulent entry was the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment that, if known, might have resulted in rejection. Any incident, which met the foregoing, may be cause for discharge for fraudulent entry. Paragraph 14-3 states, in part, that commanders exercising general court-martial jurisdiction are authorized to void a fraudulent entry by issuing special orders releasing the individual from Army control by reason of fraudulent entry when such individual is AWOL or in desertion.

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. In view of the circumstances in this case, the applicant is not entitled to an upgrade of his two discharges and correction to his records to show he received a GED. He has not shown error, injustice, or inequity for the relief he now requests.

2. The Board has noted his contentions that he has been good for over 30 years and was advised that he could get his discharge upgraded to general; however, the applicant had multiple instances of AWOL, and he failed to report having any previous service, or having received a discharge under other than honorable conditions at the time of his fraudulent enlistment. The applicant was discharged to avoid trial by court-marital and because he fraudulently and knowingly omitted the facts of his first enlistment and his UD. Prior to being discharged on 17 March 1975, the applicant declined counsel, waived his right to a hearing and personal appearance before a board of officers, and acknowledged that he understood the effects of a UD.

3. The type of discharges directed and the reasons therefore were appropriate considering all the facts of the case.

4. The Board also notes that the applicant's records do not show he received a GED while in the Army. His education is shown as completion of 7 years. The applicant has not shown otherwise.

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

_RJW___ _KYF____ _RVO___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075317
SUFFIX
RECON
DATE BOARDED	20020926
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	A70
2.
3.
4.
5.
6.