MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 June 2003
         DOCKET NUMBER: AR2002080638

         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
Ms. Lana E. McGlynn		Member
Mr. William D. Powers		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)

---

APPLICANT REQUESTS: That his undesirable discharge (UD) be upgraded to a hardship discharge (sic). In effect, he is asking that his character of service be upgraded to honorable.

APPLICANT STATES: In effect, that he believes he should have been separated with a hardship discharge under honorable conditions.

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

He enlisted in the Regular Army on 18 July 1972 for: a period of 4 years; training in military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman); his unit of choice, the 4th Infantry Division, Fort Carson, Colorado; and the cash bonus enlistment option. Both his DD Form 398 (Statement of Personal History) and his enlistment contract reflect that he was single. His records do not contain a marriage license or information concerning any dependents.

The applicant completed all required military training, and was awarded MOS 11C and assigned to Fort Carson with duty in his MOS.

On 20 February 1973, the applicant requested a compassionate reassignment due to the illness of his wife. He supported his request with a letter that was written by a psychiatrist at the Milwaukee County Clinic, Milwaukee, Wisconsin. The letter indicates the applicant's wife was suffering from severe depression and anxiety neurosis. The applicant's record also contains an undated letter written by a social worker indicating that the applicant's wife was missing from the home and his three young children were in the care of neighbors. There were no family members available to provide 24-hour care for the children. The record contains no disposition of the applicant's request for compassionate reassignment.

On 10 August 1973, the applicant left his unit in an absent without leave (AWOL) status. While in an AWOL status, the applicant was arrested by the Milwaukee Police Department for having a sawed-off shotgun in his possession. On 23 October 1973, he was convicted of reckless use of a weapon and sentenced to serve 4 months in civil confinement. On 5 November 1973, the applicant authenticated a statement indicating that he did not intend to appeal his civil conviction. Elimination actions were initiated under the provisions of Army Regulation 635-206.

On 29 January 74, the applicant was release and assigned to military authorities at Fort Sheridan, Illinois. On 23 April 1974, the applicant left his unit in an ordinary leave status enroute to Fort Riley, Kansas. On 6 May 1974, he went into an AWOL status when he failed to report to Fort Riley. On 29 October 1974,

---

the applicant returned to military authorities at the Personnel Control Facility, Fort Leonard Wood, Missouri. On 6 November 1974, court-martial charges were preferred against the applicant for this period of AWOL.

On 7 November 1974, 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, Army Regulation (AR) 635-200. He was advised that he could receive a UD. He acknowledged that he understood the ramifications of receiving a UD. Evidence in the record indicates that the applicant provided a statement in his own behalf explaining that his AWOL was the result of his wife's health, coupled with four small children and the need for him to be at home. The statement is no longer contained in the record.

On 7 November 1974, both the applicant’s unit and intermediate commander's recommended that his request for discharge be approved with a UD. On 12 November 1974, the separation authority approved separation with a UD.

The applicant's DD Form 214 shows that on 14 November 1974, he was separated under the provisions of chapter 10, Army Regulation 635-200 with a UD. His DD Form 214 also shows that he had completed 1 year, 1 month and 14 days of creditable active military service and he had 349 days of lost time due to being AWOL and in confinement.

The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade. The ADRB, after considering his case on 24 September 1981, denied his request.

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 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. The type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

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 acknowledges the applicant had some personal problems that required his immediate attention; however, he had many legitimate avenues through which to obtain assistance with his personal problems without committing the misconduct offense that led to the separation action under review.

5. 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___ __lem___ __wdp___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002080638
SUFFIX
RECON
DATE BOARDED	20030619
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19741114
DISCHARGE AUTHORITY	AR635-200, Chap 10
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.7000
2.
3.
4.
5.
6.