MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 January 2003
         DOCKET NUMBER: AR2002079012

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Arthur A. Omartian		Member
Ms. Marla J. N. 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 (UD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES: In effect, that his UD was not warranted by the nature of his behavior and actions during his active duty tenure. He states that a GD appropriately characterizes the overall quality of his service in the Army. He states that after a car wreck in April 1971, he was placed on convalescent leave
from 7 April to 23 April 1971, and that he had several short periods of being absent without leave (AWOL). He further states that he was having problems with authority, which was complicated by alcohol abuse for which never received treatment. In support of his application, he submits a copy of his separation document (DD Form 214).

COUNSEL CONTENDS: In effect, that the applicant’s discharge was inequitable and warrants an upgrade. Counsel states that the applicant was young and immature and was not able to cope with people in authority. In addition, counsel claims that the applicant’s problems were exacerbated due to alcohol abuse which was not viewed as a treatable condition but as a misconduct problem. Counsel contends that the applicant was not afforded the opportunity for rehabilitation and requests this be considered a basis for an upgrade of his discharge.

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

On 4 June 1970, he enlisted in the Regular Army for 3 years. He successfully completed training and was awarded military occupational specialty (MOS)
52B (Power Generator Equipment Operator & Mechanic). His record documents no acts of valor, significant achievement, or service warranting special recognition, and it confirms that the highest rank he attained while on active duty was private/E-1.

The applicant’s disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated: 5 May 1971, for failing to report to duty; 6 July 1971, for failing to go to his appointed place of duty; and 19 July 1971, for failure to remain at his appointed place of duty. In addition, on 12 August 1971, the applicant was convicted by a summary court-martial of failing to go at the time prescribed to his appointed place of duty. Finally, he was barred from reenlistment due to his record of misconduct.

On 24 August 1971, while assigned to Fort Bliss, Texas, court-martial charges were preferred against the applicant for failure to go at the time prescribed to his appointed place of duty, disobeying a lawful order, and being disrespectful in language toward a noncommissioned officer (NCO).
On 16 September 1971, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial; the maximum allowable punishment; and the possible effects of an UD. Subsequent to this counseling, he voluntarily requested to be discharged for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation
635-200. In addition, he submitted a statement commenting that his previous misconduct and pending court-martial charges would not allow him to support his family on the pay of an E-1. He further commented that for the good of the Army his request should be approved.

The appropriate authority approved the applicant’s discharge request and directed that he receive an UD. On 30 September 1971, the applicant was discharged accordingly. At the time of his discharge, he had completed a total of 1 year, 3 months, and 24 days of creditable active military service, and he had accrued 3 days of time lost due to being AWOL.

The applicant’s available medical records reveal give no indication that the applicant suffered from an alcohol related illness or that he ever sought treatment for any such condition. Further, there is no evidence that he was ever treated for an injury or illness that was related to alcohol abuse.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statue of limitations.

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 an 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. The Board notes the contentions of the applicant and his counsel that his discharge was unjust and that his age, immaturity, personal problems, and inability to cope with authority impaired his ability serve. However, lacking any evidence of record or independent evidence to show that these factors resulted in some error or injustice, the Board finds they are not sufficiently mitigating to warrant the requested relief.

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2. There is no evidence of record, nor has evidence been presented to support the applicant’s and counsel contention that his misconduct was the result of alcohol abuse and not being afforded the opportunity for drug rehabilitation. Therefore, the Board finds insufficient evidentiary basis to grant the requested relief.

3. The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The Board notes that after consulting with defense counsel, the applicant voluntarily requested separation from the Army in lieu of trial by court-martial. In doing so, he admitted guilt to the stipulated offenses under the UCMJ.

4. 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 notes that the characterization of service for this type of discharge is normally under other than honorable conditions, and that the applicant was aware of that prior to requesting discharge. Finally, the Board finds the applicant’s discharge accurately reflects his overall record of service.

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.

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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 _ __MJNT__ DENY APPLICATION

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

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INDEX

CASE ID	A2002079012
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003//01/16
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19710930
DISCHARGE AUTHORITY	AR635-200. . . . .
DISCHARGE REASON	For Good Of the Service
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.