MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 January 2003
         DOCKET NUMBER: AR2002077661

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Arthur A. Omartian		Member
Ms. Marla J. Troup		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 an Honorable Discharge. The applicant adds that if the Board decides not to upgrade his discharge to honorable, he asks that consideration be given to upgrading it to a General Discharge.

APPLICANT STATES: In effect, that his daughter was born with tumors on her back which required surgery. He had no leave time accrued to take her to civilian doctors to plan for the surgery. He spoke to his first sergeant who suggested that he go AWOL (absent without leave). On his return, he went to his commander and informed him that he had to leave again so that the surgery could be performed. His commander told him he could not go. He went back to his first sergeant who told him to do what he had to do to take care of his family. He went AWOL again. When he returned, he was sent to the, "lock up for 30 days." The applicant feels that his discharge should be changed to honorable as the events described above led to his periods of AWOL. He adds that he served his country faithfully in Vietnam and during his time in service.

The applicant submitted nothing, beyond a copy of his DD Form 214, Report of Transfer or Discharge, and his self-authored letter, in support of his application.

COUNSEL CONTENDS: That the applicant has presented remarks, included in the record, of his attempts to care for his family. He was having financial difficulties and the ill health of his daughter created a situation that was sufficient enough to result in his absence from his place of duty. Although this is no excuse, his maturity and his inability to cope were overwhelmed by the conditions in his life. He ultimately tried to correct those conditions himself instead of availing himself of the resources provided on the installation to deal with just such circumstances. There also appears to be a failure of the chain of command to mentor this individual and advise him of those resources.

Counsel invites the Board's attention to the injustice the applicant raised on his application to the Board. Counsel opines that the applicant's submission, in conjunction with official Army records, amply advance his contentions and substantially reflects the probative facts needed for equitable review. Counsel rests on the evidence of record.

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

The applicant enlisted in the Regular Army for 3 years on 25 September 1967. Following completion of basic combat training, he completed advanced individual training and was awarded the primary military occupational specialty 72C, Central Office Telephone Switchboard Operator.

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The applicant served in Vietnam from 2 August 1968 through 20 June 1969. He was promoted to the rank and pay grade Specialist 4, E-4, on 16 November 1968, while in Vietnam. On his return to the United States, the applicant was assigned, on 7 August 1969, as permanent party, to the Replacement Detachment, 2^nd Basic Combat Training Brigade, Fort Jackson, South Carolina.

A DA Form 41, Record of Emergency Data, is on file in the applicant's military personnel records. This form was completed on 7 August 1969. In Item 11, in response to the request for names and addresses of spouse, father, mother and children, the applicant indicated that he had no children. The DA Form 41 was reviewed by the applicant on 7 April 1970. No changes, to include the birth of a child, were made other than annotation of the date of review.

The applicant has submitted no evidence, nor do his personnel records contain evidence that an infant was born to him and his wife and that the baby had the medical condition that he describes.

On 15 December 1969, the applicant was ordered to forfeit $18.00. He received an Article 15 under the provisions of the Uniformed Code of Military Justice (UCMJ) and Army Regulation 27-10 for misconduct. The nature of the misconduct is unknown since the Article 15 that was administered is not on file in his personnel records. The forfeiture was announced in paragraph 2, Unit Orders Number 157 published by Headquarters and Headquarters Company, US Army Training Center, Fort Jackson, South Carolina, dated 26 December 1969.

On 1 July 1970, the applicant was ordered to forfeit $50.00 for again having received an Article 15 under the provisions of the UCMJ and Army Regulation 27-10 for misconduct. The forfeiture was announced in paragraph 2, Unit Orders Number 73 published by Headquarters and Headquarters Company, US Army Training Center, Fort Jackson, South Carolina, dated 1 July 1970. The nature of this misconduct is also unknown since the Article 15, which was administered, is also not on file in his personnel records. The Board noted that on 30 June 1970 the applicant returned from a period of AWOL of 22 days duration. The applicant was over 20 years of age when he returned from this absence.

Item 44, of the applicant's DA Form 20, Enlisted Qualification Record, lists the following periods of time lost under Section 972, Title 10, United States Code: from 9 to 30 June 1970, 22 days AWOL; from 8 to 13 September 1970, 6 days, AWOL; from 28 September to 10 October 1970, 13 days, AWOL; from 12 to 29 October 1970, 18 days, confinement; AWOL on 2 November 1970, 1 day; from
3 November 1970 to 19 January 1971, 78 days, Dropped from Rolls of the

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Organization (DFR); from 8 to 9 February 1971, 2 days, AWOL; from 10 to 17 February 1971, 8 days, AWOL; from 18 February to 24 March 1971, 35 days, DFR; and 26 March 1971 to an unrecorded date, confinement.

According to information recorded on OSA Form 62A Army Discharge Review Board Brief, dated 11 September 1973, the applicant requested discharge for the good of the service under the provisions of AR (Army Regulation) 635-200, chapter 10, on 26 March 1971. According to the brief, the applicant acknowledged in his request, which is not on file, that he understood the nature and consequences of the GD/UD (General Discharge/Undesirable Discharge) that he might receive, and that he understood the withdrawal options. Neither the basic application for discharge nor the recommendations for approval or disapproval are in his file.

The unit commander and the intermediate commander recommended approval of the applicant's request. On 12 April 1971, the separation authority approved the request and directed that an undesirable discharge be issued. On 20 April 1971, the applicant was discharged in compliance with his request.

On the date of his discharge, he had 3 years, 1 month and 13 days creditable service and over 200 days lost time. He was separated in the rank and pay grade, Private, E-1. The DD Form 214 issued him on his discharge date reflects that he was awarded the Vietnam Service Medal, the Vietnam Campaign Medal, 1 Overseas Service Bar, the Expert Marksmanship Qualification Badge (Rifle M-16), and the Sharpshooter Marksmanship Qualification Badge (Rifle M-14).

The applicant’s record documents that the highest permanent rank he held on active duty was Specialist 4, E-4. The record contains no documented acts of valor, achievement, or service warranting special recognition.

The applicant applied to the Army Discharge Review Board (ADRB) for review and upgrade of his undesirable discharge on 28 March 1973. In the application for Review of Discharge or Separation from the Armed Forces of the United States, DD Form 293, the applicant entered in Block 8 of that form, "Because of family problems I went AWOL - 1^st one was 1969 - the reason was because they had repossessed my trailer." He continues that he went AWOL because of the illness of his little 2-month-old daughter who had blood clots on one side of her neck. The applicant claimed that she was operated on at Gaston Memorial Hospital, in January 1971. He then added that the last time he went AWOL was March 1971 because his trailer was being repossessed and his wife and child left him. The Army Discharge Review Board denied his application and notified him of their decision on 5 October 1973.

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In the above referenced DD Form 293, the applicant stated that he was being assisted by an officer of the Judge Advocate General's Corps in getting his financial records and his finances corrected; however, he does not indicate nor does he provide reference to the time period during which this occurred.

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, at any time after the charges have been preferred, a request for discharge for the good of the service in lieu of trial by court-martial. A discharge with the characterization of service as, under other than honorable conditions (UOTHC), 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, 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.

The above referred to regulation also defines a general discharge as 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 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 discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant’s overall record of military service.

2. The Board considered the applicant’s contention that his infant daughter's health was the proximate cause of his absences without leave and resultant discharge; however, there is no evidence of record, and the applicant has provided no evidence, to support this contention.

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3. The evidence of record shows that he made voluntary and conscious decisions to go AWOL when there were other avenues through which he could obtain assistance or relief for his personal problems, without resorting to going AWOL and which ultimately led to his applying for a discharge in lieu of trial by courts-martial.

4. 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. There is no indication that the request was made under coercion or duress.

5. There is no evidence that the applicant ever applied for a hardship discharge to resolve his alleged problems - financial, marital, and the issues of his daughter's health, either before or after the recorded periods of AWOL. According to applicant's counsel, the applicant, "tried to correct these conditions himself instead of availing himself of the resources provided on the installation to deal with just such circumstances."

6. Counsel alludes that, the applicant's maturity and his inability to cope were overwhelmed by the conditions in his life. The evidence of record shows that at the time of the applicant's first recorded AWOL, he was over 20 years of age and had served successfully in a combat zone. The Board further found no evidence that the applicant was any less mature than other soldiers of the same age who successfully completed military service.

7. The evidence of record shows, that procedurally, the applicant would have had to be charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice (UCMJ). The Board noted that the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.

8. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It also noted that the characterization of service for this type of discharge is normally UOTHC and that the applicant was aware of that before requesting discharge.

9. Finally, the Board considered the applicant’s entire record of service. The Board is convinced that the reason for discharge and the characterization of service were both proper and equitable. Further, it has determined that the

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quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his undesirable discharge to a general or an honorable discharge.

10. 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.

11. 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

__rvo___ __aao___ __mjt___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077661
SUFFIX
RECON
DATE BOARDED	20030116
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19710420
DISCHARGE AUTHORITY	AR 635-200, CHAPTER10
DISCHARGE REASON	A71.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.0133
3.	144.0144
4.
5.
6.