MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 March 2003
         DOCKET NUMBER: AR2002081200

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Raymond V. O’Connor, Jr.		Member
Ms. Eloise C. Prendergast		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 be upgraded to a general discharge.

APPLICANT STATES: The applicant offers no argument or evidence in support of his request.

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

He was inducted at the age of 21, in Oakland, California, on 17 September 1969. He was transferred to Fort Lewis, Washington to undergo his basic combat training (BCT). On 11 October 1969, nonjudicial punishment (NJP) was imposed against him for failure to clean his weapon. His punishment consisted of a forfeiture of pay.

He completed his BCT and was transferred to Fort Bliss, Texas, on 24 November 1969, to undergo his advanced individual training (AIT) as a light air defense artillery crewman. He was advanced to the pay grade of E-2 on 17 January 1970.

Upon completion of his AIT, he received orders transferring him to Vietnam, with a report date to the overseas replacement station at Fort Lewis on 13 February 1970. The applicant failed to report as directed and was reported as absent without leave (AWOL) effective 13 February 1970. He remained absent until he was returned to military control at Fort Riley, Kansas, on 3 March 1970.

On 7 March 1970, NJP was imposed against him for the AWOL offense. His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

The applicant again received orders to report to Fort Lewis for transfer to Vietnam, effective 13 March 1970. He gain went AWOL and remained absent until he was returned to military control at Fort Lewis on 21 October 1970.

He was convicted by a special court-martial on 4 November 1970 of being AWOL from 13 March to 21 October 1970. He was sentenced to confinement at hard labor for 6 months, a forfeiture of pay and reduction to the pay grade of E-1. He was transferred to the Army Correctional Training Facility at Fort Riley to serve his confinement.

On 13 January 1971, the unexecuted portion of his sentence to confinement was remitted and he was transferred to Fort Bliss on 25 January 1971. He was also advanced to the pay grade of E-2 on 13 January 1971 and to the pay grade of E-3 on 3 March 1971.


He again went AWOL on 8 March 1971 and remained absent until he was returned to military control at Fort Carson, Colorado, on 4 June 1971, where charges were preferred against him.

On 10 June 1971, he was interviewed by a commissioned officer who indicates that the applicant stated that he felt antagonism towards the Army for having been conscripted at the advanced age of 21. The applicant stated that had he been younger, he might have been more sympathetic to the purposes of the Army and that he was too set in his ways to ever willingly lend himself to military service. Military harassment and discipline had an inflammatory effect on him and he promised the interviewer that he would refuse further duty and continue to resort to going AWOL to obtain a release from his circumstances.

After consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. He further declined to submit a statement in his own behalf.

The appropriate authority (a brigadier general) approved his request for discharge on 30 June 1971 and directed that he be furnished with an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 7 July 1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 10 months and 1 day of total active service and had 385 days of lost time due to AWOL and confinement by civil authorities.

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 charges have been preferred, submit a voluntary request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions was at that time and is still normally considered appropriate.
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 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.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the length of his absences and his undistinguished record of service.

4. 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.

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

___jhl___ ___elp___ ___rvo __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002081200
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/03/27
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1971/07/07
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SERVICE
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00
2.
3.
4.
5.
6.