PROCEEDINGS


         IN THE CASE OF: .
        

         BOARD DATE: 26 August 2003
         DOCKET NUMBER: AR2002081835


         I certify that hereinafter is recorded the true and complete record of the proceedings 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 J. Wagner		Chairperson
Mr. Robert Duecaster		Member
Ms. Marla J. Troup		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that the undesirable discharge given her son, a former service member (FSM), be upgraded to honorable.

3. The applicant states, in effect, that it is she who is at fault for the discharge that her son received from the Army. Her husband was blind; he had epileptic seizures and could not drive; she was also very sick and needed her son, as she does now, so she sent for him. She adds that her son is a good husband, father, and grandfather. He helps many in need in his work. She didn't know there was any other way and that there was a time limit for submitting an application to this Board.

4. The applicant, the FSM's mother, submitted a Letter of Authorization with her son's notarized signature, essentially giving her power of attorney in the review of this case; and in addition, a copy of both her and her son's birth certificate; and a copy of the marriage license issued her and her husband by the State of Mississippi to prove relationship.

5. The FSM's military records show the FSM enlisted in the Army for 3 years on 2 April 1974 and was processed at the Armed Forces Entrance Examination Station, Jackson, Mississippi. He enlisted when he was just over 17 years of age, with his father's and mother's consent. The FSM enlisted for Special Unit Enlistment Option, 1st Cavalry Division, Fort Hood, Texas, and training as a Mechanical Maintenance Helper, Military Occupational Specialty (MOS) 63A.

6. According to Item 24, Aptitude Tests, of his DA Form 20, Enlisted Qualification Record, the FSM had an Armed Forces Qualification Test (AFQT) Score of 63, a General Technical (GT) score of 110, a Mechanical Maintenance (MM) aptitude test score of 72, and a 6th grade educational level. The date of the mental examinations was shown to be 22 March 1974.

7. DA Form 3286, Statement for Enlistment, Part II, Number (2), the FSM answered "yes" to the question, "Have you ever been rejected for enlistment or induction in any of the Armed Forces to include failure of the mental examinations administered by any AFEES, or been discharged from previous service under other than honorable conditions, under Personnel Security Regulations, or by reason of unsuitability, or undesirable habits or traits of character, or for medical reasons?" In Part II, item 3, Remarks, of the same form, the FSM reported that he had failed the entrance examination on 21 March 1974 at AFEES, Jackson, Mississippi. This form is dated 2 April 1974.

8. The applicant authenticated the DA Form 3286 in the block captioned, "Signature of Applicant." By entering his signature, the FSM attested that he had

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read and understood the meaning of all statements contained on the form and agreed to all conditions set forth therein. He also certified that all answers to questions, statements and entries on the form were true, correct and complete, and that the Recruiter/Career Counselor had informed him that should he intentionally conceal any information required, he would later be subject to disciplinary action or discharge upon its discovery.

9. The applicant successfully completed basic combat training, graduated on time without being recycled and earned the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar.

10. Following completion of basic combat training at Fort Jackson, South Carolina, the FSM was assigned to Fort Hood, Texas, to undergo training in the MOS 63A. He arrived at Fort Hood and was assigned to Headquarters and Headquarters Company, 34th Support Battalion, on 18 June 1974, for TRAPP (Training and Retention as Permanent Party) in the MOS 63A.

11. On 2 July 1974, the FSM was reported absent without leave (AWOL) from his unit and remained AWOL until 28 July 1974. The FSM again absented himself on 12 August and remained AWOL until 6 November 1974 when he was apprehended by civilian law enforcement authorities in Jackson, Mississippi.

12. On 18 September 1974, a commander's inquiry was conducted into the circumstances surrounding the FSM's absence. One of the findings pointed out by command was, according to the unit, there were no known reasons for the FSM having gone AWOL. A second key finding was that, "There are no known friends, pertinent information or expected testimony." (Emphasis added.)

13. According to entries found in Item 33, Appointments and Reductions, DA Form 20, Enlisted Qualification Record, the FSM was advanced to the rank and pay grade, Private, E-2, on 2 August 1974. This advancement took place despite the fact that he had just returned from a period of AWOL.

14. Following his return to military control, court-martial charges were preferred on 12 November 1974 against the FSM for the above absences. The FSM had not been subjected to non-judicial punishment nor had he been the subject of a court-martial to this point in his military service.

15. The evidence of record shows that on 15 November 1974, the FSM consulted with counsel and submitted a request for discharge for the good of the service. The FSM did not submit a statement in his own behalf but was interviewed by the unit's personnel officer. In this interview, to which he

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responded to 4 questions in the written form, he revealed that he disliked the Army because he was experiencing family problems. The FSM also expressed no potential for his own rehabilitation.

16. The FSM underwent a separation physical examination on 14 November 1974. There is no indication that he was referred to a psychiatrist for an evaluation to determine if a mental defect, derangement or abnormality existed. Psychiatric evaluation was not required but this provision of the regulation was used, when appropriate.

17. The FSM's chain of command unanimously recommended approval of the FSM's request for discharge for the good of the service and recommended that an Undesirable Discharge, DD Form 258A, be issued. The separation approval authority, a major general, approved the request on 26 December 1974 and directed that an Undesirable Discharge be issued.

18. The FSM was separated, in compliance with his request, in the rank and pay grade, Private, E-1, on 22 January 1975. On the date of his separation, he had 5 months and 29 days active Federal service with 112 days lost time due to absence without leave.

19. The FSM applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 24 April 1975 and on 29 August 1975, the ADRB denied his application. It is apparent from the penmanship and from the language used that the person who filled out the Application for Review of Discharge or Separation from the Armed Forces of the United States, DD Form 293, was the FSM's mother, although the signature, which appears, is that of the FSM.

20. 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 under other than honorable conditions is normally considered appropriate.

21. Paragraph 3-7a, of the above regulation, 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

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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.

22. Paragraph 3-7b,of the same regulation, 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.

23. Basic combat training is a rigorous course designed to transition a citizen to a soldier. A soldier's days are long, rigidly structured, and filled with a number of layers of players in leadership positions who are specially trained and entrusted with this mission as well as entrusted with the responsibility for assisting citizens in transition to resolve problems and other issues that they may experience while undergoing training.

CONCLUSIONS:

1. The evidence of record shows the FSM was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.

2. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The Board noted that, after consulting with defense counsel, the FSM voluntarily requested separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial. The request for separation was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.

3. It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions. The FSM was aware of that before requesting discharge but the Board believes that he did not fully understand all the implications that are attached to this type of discharge.

4. The Board noted that the FSM reported to have failed the mental examinations and was rejected from enlistment on 21 March 1974, in his certified statement, on DA Form 3286. The Board also noted that the scores achieved and posted to Item 24 of the FSM's DA Form 20 are dated 22 March 1974. There is no evidence of a retest in the basic aptitude battery. Finally the Board noted that thirteen days after the FSM reported to have failed the Army aptitude battery, he was deemed to be qualified for enlistment in the Army. The Board noted a hint of a suggestion of probable recruiter malfeasance in the processing of the FSM for entrance into the Army.

5. The FSM performed successfully in a highly regimented, highly structured environment where there was seldom a lack of an authority figure in whom he could confide and get help in resolving problems of a personal nature. The FSM completed basic combat training and graduated on time without being recycled.

6. Training to which the FSM was subjected at Fort Hood, under the TRAPP, was not as regimented and as structured as that to which he had been exposed while undergoing basic combat training. The FSM was more loosely supervised in his new permanent party/training environment so when his mother called for him to come home, he responded to her authority and need.

7. In his new training environment, the FSM had no friends, according to investigation results, and since he had been at his new duty station for only a brief time, he had not yet learned to trust those in leadership sufficiently to confide in them and get the type of help and assistance he needed.

8. The Board does not condone the FSM having gone AWOL but it found that his decision to go AWOL could have been impaired by the inadequacy of his educational level; the emotional reaction to the pressures being admittedly imposed on him by his mother about the problems the family was faced with at home, which he was not prepared to handle; the lack of friends and therefore a lack of a support net; and the lack of the same quality and quantity of structure and regimentation he was accustomed to while undergoing basic combat training.

9. The Board found that the FSM's reaction to the pressures discussed in the paragraph above mitigated his misconduct and warrants that clemency be shown.

10. Further, the Board noted that his AWOL offenses were violations of military rules and regulations and were not otherwise serious offenses against society.

11. In light of the FSM's educational background, the extenuating circumstances regarding his family, questions surrounding test scores achieved and recorded, the Board determined that the applicant’s characterization of service is inequitable and in the interest of justice, it would be best to upgrade the FSM's discharge to an under honorable conditions (General) discharge.

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12. In view of the foregoing, the FSM's records should be corrected as recommended below.

RECOMMENDATION:

1. That all Department of the Army records related to this case be corrected to show that the individual concerned was discharged from the service with his service characterized as under honorable conditions with a General Discharge Certificate on 22 January 1975.

2. That the Department of the Army issue to the individual concerned a General Discharge Certificate in lieu of the undesirable discharge of the same date now held by him.

3. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

___rjw__ ___mt___ ___rld___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Raymond J. Wagner____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002081835
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/08/26
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1. 189	110.0000/discharge
2.
3.
4.
5.
6.