MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 April 2003
         DOCKET NUMBER: AR2002078222

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Thomas Lanyi		Member
Mr. Bernard P. Ingold		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 a general discharge (GD) under honorable conditions.

APPLICANT STATES: That at the time he enlisted in the military, he was a young, immature 16-year-old student who had just completed eighth grade. At the time that he was separated, he was uneducated and he did not understand how to consult with legal counsel, nor did he understand the consequences of receiving a discharge under the provisions of chapter 10, Army Regulation (AR) 635-200. It was not until 25 years after the fact that veteran's services helped him to fully understand the meaning of receiving a UD. He has held three jobs in the last 25 years; he has worked as a warehouse supervisor for the past 12 and one half years; he has never been in trouble; he has been married for 27 years and a role model for his family; and he admits that he made some bad decisions.

He adds that he was trained in military occupational specialty (MOS) 11D, Armor Reconnaissance Specialist, and he was confident that he was going to serve in his MOS. However when he arrived at Fort Hood, Texas, he was assigned to a helicopter unit. He did not understand how he could be expected to fly and operate helicopters when he had no training, schooling or education in this MOS. He states this was not fair to him or to the military. He tried to tell his commander that he should have been assigned to an Armor unit but his commander could not transfer him to his proper job and MOS. That is when his problems began. He states that he was guaranteed he would be assigned to an armor unit and he requests that this Board help him to understand why he could not serve in his MOS. He believes that his characterization of service is too harsh given the offenses that he committed. He submits in support of his request character reference letters that were written by his wife and by his counsel. He also submits pictures of the armored M114A1 vehicle and the armored M114A1E1 vehicle that he contends he was trained to drive and a certificate that he received from the US Army Retraining Brigade.

COUNSEL CONTENDS: That the applicant was guaranteed a job in an armor unit; that he had an armor MOS and he was assigned to an air unit; that there were men that did things that were worse than those things that the applicant did and they received a better characterization of service. Counsel requests that the Board review his personal statement and address his issues.

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

On 6 December 1973, at age 17, the applicant enlisted in the Regular Army (RA) with a declaration of parental consent that was signed by both of his parents on 5 December 1973. The applicant enlisted for 3 years and with a stipulation in his enlistment contract that, upon completion of training, he would be assigned to the 3rd Armored Calvary Regiment (ACR), Fort Bliss, Texas, provided he met all required prerequisites.
On 11 March 1974, while the applicant was assigned to Fort Knox, Kentucky, for advanced individual training (AIT), nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, was imposed against him for being absent from his place of duty on 9 March 1974. His punishment included forfeiture of $70.00 pay per month for 1 month and 14 days of extra duty and restriction.

The applicant completed AIT and he was awarded MOS 11D, Armor Reconnaissance Specialist. On 21 April 1974, he was assigned to E Troop, 2nd Squadron, 3rd ACR, Fort Bliss, to serve in MOS 11D.

On 13 June 1975, NJP was imposed against the applicant for leaving his appointed place of duty on 30 May 1975 and for failure to go to his appointed place of duty at the time prescribed on 2 June 1975. His punishment included reduction from pay grade E-4 to pay grade E-3, forfeiture of $92.00 pay per month for 1 month and 14 days of extra duty and restriction.

On 22 July 1975, NJP was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed on 11 July 1975. His punishment included reduction from pay grade E-3 to pay grade E-1, forfeiture of $89.00 pay per month for 1 month and 14 days of extra duty.

On 22 July 1975, the applicant was barred from reenlistment. The bases for the bar were that both the applicant's conduct and efficiency ratings were unsatisfactory; that between 1 May and 20 June 1975, he had been counseled on seven separate occasion's for numerous offenses; and that he had received two NJP's. There is no evidence that the applicant appealed the bar.

On 30 July 1975, the applicant was reassigned to L Troop, 3rd Squadron, 3rd ACR. He left his unit absent without leave (AWOL) from 11-20 August 1975 and from 22 August-19 September 1975.

On 16 October 1975, the applicant was convicted by a special court-martial of being AWOL for the above two periods. He was sentenced to reduction from pay grade E-3 to pay grade E-1, to forfeit $50.00 pay per month for 2 months, and to be confined at hard labor for 2 months.

The applicant was confined at the United States Army Retraining Brigade (USARB), Fort Riley, Kansas, from 20 November 1975- 4 December 1975. He was assigned to the USARB in a trainee status from 5 December-29 December 1975. On 30 December 1975, the USARB awarded him a Certificate for Completion of the training program.

On 16 January 1976, the applicant was assigned to Troop B, 7th Squadron, 17th Calvary, 6th Air Cavalry Combat Brigade (ACCB), Fort Hood, Texas, with duties in MOS 11D.
The applicant was AWOL from his unit from 20 April-3 August 1976. On 13 August 1976, the applicant indicated in a written statement that he went AWOL to support his wife and baby. He stated that he loved his family more than anything; that he thought he was going to lose his family; that he felt nervous; and that he had a job that would allow him to support his family after he was separated. He also indicated that he had seen a doctor for nervousness and that the doctor suggested that he get out of the military.

On 16 August 1976, the applicant underwent a medical examination and a mental status evaluation and was determined to be qualified for separation under the provisions of chapter 10, AR 635-200. He had no psychiatric disorder or mental defects; he was rational, coherent and oriented to time, place and person; he was mentally responsible, able to distinguish right from wrong and adhere to the right; and he had the mental capacity to understand and participate in board proceedings.

On an unknown date, charges were preferred against the applicant for the period of AWOL from 20 April-3 August 1976. On 16 August 1976, the applicant consulted with legal counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200. He was advised that he could receive a UD. He acknowledged in writing that he understood the ramifications of receiving a UD and he declined to submit a statement in his own behalf.

The applicant's Official Military Personnel File contains a two-page memorandum that was written by the Staff Judge Advocate (SJA), Headquarters, III Corps and Fort Hood, dated 30 August 1976, which outlines the applicant's history prior to enlistment and after enlistment. It shows his assignments and clearly indicates that he was assigned to perform duties in MOS 11D. It also shows the applicant was counseled extensively concerning the benefits that he would lose under both Federal and state law, and the prejudices he could expect to encounter in civilian life if he were to receive a UD. During the counseling process, the applicant stated "while he understood all of this, he still want[ed] to submit his request under chapter 10, because he just could not take Army life any longer." The applicant also expressed that he was experiencing a problem with his nerves and that he had a job waiting for him in Dallas, Texas, when he got out. The SJA stated that it was his opinion that the applicant's request should be approved with a UD.

On 20 August 1976, the applicant's commander recommended that his request for discharge for the good of the service be approved and that he be issued a UD. The commander cited the bases for his recommendation were the applicant's AWOL offenses; his punishment record; and the fact that he was very unstable and he had many family problems. The commander believed it would be in the best interest of the Army and the applicant if he were separated. On the same date, the battalion commander strongly recommended approval with the issuance of a UD. The battalion commander cited the bases for his recommendation as the applicant's history of going AWOL and his unstable marriage that possibly affected his military life and performance of duty. He also believed that it would be in the best interest of the Government and the applicant for the applicant to be separated.

On 23 August 1976, the separation authority approved separation with a UD under the provisions of chapter 10, Army Regulation 635-200.

On 27 October 1976, the applicant was separated under the provisions of chapter 10, Army Regulation 635-200 with a UD. He had completed 2 years, 4 months and 8 days of active military service and he had 197 days of lost time due to being AWOL and in confinement.

On 18 June 1985, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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.

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 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.

2. The applicant's voluntary request for separation under the provisions of chapter 10, AR 635-200, 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. The type of discharge directed and the reasons for discharge were appropriate considering the facts of the case. Additionally, the Board noted that the applicant was counseled at great length concerning the ramifications of receiving a UD and he acknowledged that he understood.

3. The applicant's conduct was inconsistent with the Army’s standards for acceptable personal conduct and his overall quality of service does not warrant an upgrade of his discharge.

4. The Board took into consideration the applicant’s contention that he was young; however, he met entrance qualification standards to include age with parental consent. Further, the Board found no evidence that he was any less mature or that he had less education than other soldiers of the same age that successfully completed their military service obligation.

5. The Board determined that the applicant met the training requirements and was awarded MOS 11D and assigned to the 3rd ACR, Fort Bliss, as stipulated in his enlistment contract. He continuously committed offenses of misconduct. In October 1975, he was convicted by a court-martial of being AWOL and sentenced to serve time in confinement at the USARB. Upon completion of the retraining program, the Army was not obligated to send the applicant back to the 3rd ACR or to any other Armor unit. In January 1976, the applicant was assigned to the 6th ACCB to serve in MOS 11D. This provided for the applicant to have a fresh start. The applicant was never expected to operate a helicopter. He was expected to perform the same duties that he had been trained to perform, but in a different environment.

6. The Board also took into consideration the applicant’s character references, as well as the fact that he has matured and become a productive citizen since being separated from the military. The Board commends the applicant for his accomplishments. However, post service accomplishments alone do not provide the Board a basis upon which to grant relief.

7. The Board reviews cases to determine issues of propriety and equity and the applicant has provided no evidence to establish a reason for the upgrade of his discharge based on either.

8. 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

__jns___ __tl____ __bpi___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078222
SUFFIX
RECON
DATE BOARDED	20030429
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19761026
DISCHARGE AUTHORITY	AR635-200, Chap 10
DISCHARGE REASON	A60.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.6000
2.
3.
4.
5.
6.