MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 March 2003
         DOCKET NUMBER: AR2003083507

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Thomas A. Pagan		Chairperson
Mr. Roger W. Able		Member
Mr. John A. Kelley		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 Honorable.

APPLICANT STATES: In effect, that he should never have been drafted. He states that at the time he was drafted, he could neither read nor write. He adds further that as a result of his having been drafted, his life was ruined; he lost his family because he was not able to write letters home. He was unable to understand commands. He adds that he should have received a better discharge. He would like to have his discharge upgraded.

In support of his application, the applicant submitted a letter from his parents, a letter from his fiancé, a character reference letter, a letter from his doctor, and two letters from law enforcement agencies giving the results of police records checks and a copy of his DD Forms 214, Armed Forces of the United States Report of Transfer or Discharge, with effective date of 8 April 1970.

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

The applicant was inducted into the Army of the United States on 21 August 1969. When inducted, the applicant had a ninth grade formal educational level. During pre-induction testing, he attained a score of 62 for Verbal English (VE) skills and a score of 81 for his Arithmetical Reasoning (AR) skills, equating to a General Technical (GT) score of 72.

As part of routine inprocessing into the Army, the applicant partially completed a DD Form 398, Statement of Personal History. The applicant handwrote correct responses in the various items on the form.

While awaiting the start of his basic combat training at Fort Benning, Georgia, the applicant departed absent without leave (AWOL) on 4 September and remained absent until 10 September 1969. He absented himself again on 11 September 1969 and remained AWOL until 18 September 1969. The applicant again went AWOL on 25 September and remained absent until 22 October 1969.

On 14 January 1970, the applicant was court-martialed for the above absences. He was found guilty and sentenced to confinement at hard labor for 3 months. The sentence was adjudged on 15 January 1970. The court-martial convening authority approved the sentence to 3 months confinement at hard labor but suspended the sentence for three months.

On 31 January 1970, the applicant again departed AWOL from his unit,
B Company, 3rd Battalion, 1st Basic Combat Training Brigade. On 2 February he surrendered himself to his unit. On the same date the sentence to three

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months confinement at hard labor was vacated and ordered executed in Special Court-Martial Order Number 7 published by Headquarters, 1st Basic Combat Training Brigade, Fort Jackson, South Carolina. He was confined at the post stockade at Fort Jackson.

On 17 February 1970, the applicant escaped from lawful custody, departed AWOL from the post stockade and was dropped from the rolls of the organization as a deserter. The applicant was apprehended by military authorities in Florida and was returned to the post stockade on 26 February 1970.

In a 28 February 1970 letter, Subject, Commander's Inquiry, prepared in compliance with Army Regulation 630-10, the commander of B Company, 3rd Battalion, 1st Basic Combat Training Brigade, reported that, [the applicant] "has not been an average soldier." The commander stated that on the applicant's return from a previous AWOL, he had stated, "he would go AWOL again and that he didn't care if he went to the stockade." There was no mention made by the applicant that he could neither read nor write.

Evidence of record shows that on 13 March 1970, court-martial charges were brought against the applicant for the following violations: AWOL from 31 January to 2 February 1970 and from 17 to 21 February 1970 and for escaping from lawful custody on 17 February 1970.

On 19 March 1970, the applicant underwent a psychiatric evaluation. In his report, the physician, a trained psychiatrist, reported that the applicant had an "antisocial personality, chronic, severe; manifested by difficulty adjusting to military life, cannot read or write, refusal to cooperate with authority figures, antisocial behavior patterns. Stress, minimal, routine military duty. Predisposition: long history of social maladjustment. Impairment: severe, for even minimal adjustment to military life. LOD: No, EPTS (existed prior to service)." The physician found him mentally responsible, both to distinguish right from wrong and to adhere to the right. He was found to have the mental capacity to understand and participate in board proceedings. The applicant's condition, in the opinion of the physician, represented a long-standing, refractory personality disorder, which was not amenable to disciplinary action, psychotherapy, reclassification or reassignment. He was psychiatrically cleared for any administrative or judicial action deemed appropriate by command.

The evidence of record shows that on 19 March 1970, the applicant consulted with counsel and submitted a request for discharge from the service. The applicant did not submit a statement in his own behalf.

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In his request, the applicant acknowledged that he understood that he could request discharge for the good of the service because charges had been preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized imposition of a bad conduct or dishonorable discharge. He stated that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person; that he understood he could be denied some or all veterans' benefits as a result of his discharge; that he may be deprived of rights and benefits as a veteran under both Federal and State law; and that he may encounter substantial prejudice in civilian life by reason of an undesirable discharge.

The applicant's chain of command recommended approval of his request and recommended that he be discharged with an undesirable discharge. The separation authority, a major general, approved the applicant's discharge on
27 March 1970 and directed that he be discharged with an undesirable discharge.

The applicant was discharged on 8 April 1970 in the rank and pay grade, Private, E-1, under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial. His service was characterized as under other than honorable conditions and he was provided an undesirable discharge certificate. On the date of his discharge, he had 4 months and 1 day active Federal service with 100 days lost due to AWOL and confinement.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

Army Regulation 630-10 provides guidance for determining absent without leave (AWOL) or desertion status. It defines procedures for administration of persons in such status. It gives instructions for starting apprehension efforts and describes administrative actions for members returning to military control.

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.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.

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The honorable characterization is appropriate when the quality 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.

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

2. The Board noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ. There is no indication that the request was made under coercion or duress.

3. The physician performing the psychiatric evaluation may have been informed falsely by the applicant about his reading and writing ability since he [the applicant] had completed tests and forms, and in particular, the DD Form 398, while inprocessing into the Army. To have correctly completed this form and to have completed GT testing required an ability to read and to respond in the written form.

4. The applicant’s voluntary request for separation, was administratively correct and in conformance with applicable regulations. 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.

5. While he may now believe that he made the wrong choice, the applicant should not be allowed to change his mind at this late date, especially considering his less than distinguished record of service. Additionally, it is noted that it was the applicant that requested a discharge for the good of the service to avoid the possibility of a punitive discharge and having a felony conviction on his records.

6. The Board also noted that the characterization of service for this type of discharge is normally Under Other Than Honorable Conditions and the applicant was aware of that before requesting discharge.

7. The Board considered the letters the applicant submitted with his application.

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The letter from the applicant's physician does not diagnose Dyslexia but merely reports to this Board what the applicant reported to him. These letters do not mitigate the actions taken by the applicant over 33 years ago in response to his alleged inability to read and write. There were avenues that the applicant could have taken to resolve his alleged inability to read and write without his having repeatedly absented himself without authority.

8. Finally, the Board considered the applicant’s entire record of service. There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition, especially in view of the fact that he had not yet begun basic combat training.

9. The Board is convinced that the reason for discharge and the characterization of service were both proper and equitable. Further, the Board has determined that the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his undesirable discharge to an honorable discharge.

10. 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.

11. 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

__tap___ __rwa___ __jak___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003083507
SUFFIX
RECON
DATE BOARDED	20030313
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19700408
DISCHARGE AUTHORITY	AR 635-200,Chapter 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.7000
3.
4.
5.
6.