MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 April 2003
         DOCKET NUMBER: AR2002082591

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Lester Echols		Member
Ms. Marla J. 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 discharge had a negative impact on and had been on the minds of both he and his mother for many years. He claims that when his mother passed away a few years ago, his time in the service was still one of the things on her mind. He states that the things that happened to him in the service were not totally his fault. He claims to have suffered from a nervous condition that impaired his ability to serve. He also states that he brought this condition to the attention of his commander in basic training and tried to receive help for it at the time. He further contends that subsequent to a leave he had been on, he was instructed to remain home and await orders that never came. He speculates that had the orders arrived, he would have reported to where he was supposed to go and things would have turned out differently. He asks that his case be reviewed and that all the extenuating circumstances be considered.

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

On 1 December 1969, the applicant enlisted in the Regular Army and entered active duty. He successfully completed basic combat training and advanced individual training at Fort Dix, New Jersey, and he was assigned to the U.S. Army Overseas Replacement Center, Fort Dix, for further movement overseas.

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition, and it confirms that the highest rank he held while serving on active duty was private/E-2.

On 23 June 1970, the applicant departed absent without leave (AWOL) from the Fort Dix Overseas Replacement Center. He remained away for 1508 days until being apprehended by civilian authorities and returned to military control on
9 August 1974.

A court-martial charge was preferred against the applicant based on his violation of Article 86 of the Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 23 June 1970 to on or about 9 August 1974.

On 12 August 1970, the applicant completed a Report of Medical History (SF 93), in which he stated that he was in good health, and on the same date, he underwent a separation medical examination. The Report of Medical Examination (SF 88) indicates that his physical category was A and his physical profile was 111111. It further documented no physical conditions or defects, and the applicant was found to be qualified for separation by competent medical authority.

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On 20 August 1970, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial. Counsel also advised him of the effects of an UD and of the rights available to him. Subsequent to this counseling, the applicant voluntarily requested discharge, for the good of the service/in lieu of trial by court-martial. In his request, he acknowledged his guilt of an offense that authorized the imposition of a bad conduct or dishonorable discharge. He also stated his understanding that he would be deprived of many or all Army benefits, that he would be ineligible for many or all benefits administered by the Department of Veterans Affairs (DVA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

On 4 September 1974, the appropriate authority approved the applicant’s request for discharge, directed that he receive an UD, and that he be reduced to the lowest enlisted grade.

On 20 September 1974, the applicant was discharged accordingly. The separation document (DD Form 214) issued to the applicant on the date of his separation confirms that he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by
court-martial. At the time of his separation, he had completed a total of 8 months and 4 days of creditable active military service and he had accrued a total of 1508 days of time lost due to AWOL and conferment.

There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade to his discharge within its 15 year statute 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 applicant’s contention that he had a nervous condition that impaired his ability to serve and that he was instructed to remain home and await orders. However, it finds insufficient evidence to support these claims.

2. The Board also carefully considered the personal considerations raised by the applicant, but found these factors are not sufficiently mitigating to warrant the requested relief.

3. The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The Board notes that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.

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 and that the character of his discharge accurately reflects his relatively short and undistinguished record of service. Therefore, the Board concludes that the requested relief is not warranted.

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.

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

___fe ___ ___mt___ ___le ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082591
SUFFIX
RECON
DATE BOARDED	2003/04/10
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1974/09/20
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.