MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 March 2003
         DOCKET NUMBER: AR2003084090

         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:

Ms. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Margaret V. Thompson		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 could not finish his basic combat training so he went AWOL (absent without leave). He stayed gone until September 1974 when he was picked up. He was taken to Fort Knox, Kentucky, and it was there that the general was giving this type of discharge. He took the discharge not fully understanding what it meant. He states that he has been a model citizen for the last 28 years.

In support of his application, the applicant submitted a copy of his DA Form 20, Enlisted Qualification Record; a copy of his DD Form 214, Report of Separation from Active Duty, with effective date of 18 September 1974; and a copy of his DD Form 258A, Undesirable Discharge Certificate.

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

The applicant enlisted in the Army for 2 years on 30 December 1970. Initially assigned on 8 January 1971 to the Special Training Company, Headquarters Command, Fort Leonard Wood, Missouri, he was reassigned, on 19 February 1971, to B Company, 2nd Battalion, 3rd Basic Combat Training Brigade, to undergo basic combat training. On 19 March 1971, he was reassigned to
A Company, 4th Battalion, 3rd Basic Combat Training Brigade, to continue his training.

On 14 January 1971, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his unit, Special Training Company, on 10 January 1971, and remaining absent until 11 January 1971. The punishment imposed consisted of a forfeiture of $25.00 for one month, 14 days extra duty, and 14 days restriction to the limits of the company area. The restriction and extra duty were to be performed concurrently.

On 5 February 1971, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his unit, Special Training Company, on 29 January 1971, and remaining absent until 1 February 1971. The punishment imposed consisted of a forfeiture of $60.00 per month for two months, 30 days extra duty, and 30 days restriction to the limits of the company area. The forfeiture of $60.00 per month for two months was suspended for six months.

On 12 March 1971, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for absenting

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himself from his unit, B Company, 2nd Battalion, 3rd Basic Combat Training Brigade, on 27 February 1971, and remaining absent until 10 March 1971. The punishment imposed consisted of a forfeiture of $50.00 and restriction to the limits of the 2nd Battalion area for a period of 14 days.

Entries appear in Item 44 (Time Lost Under Section 972, Title 10, United States Code), DA Form 20, Enlisted Qualification Record, which indicates that the applicant was AWOL from 2 May 1971 to 10 May 1971 and from 14 May 1971 to 21 June 1971. Special Orders 124, Paragraph 14, published by the US Army Personnel Control Facility, Headquarters Command, US Army Training Center Engineer and Fort Leonard Wood, Missouri, shows that he was returned to military control effective 22 June 1971 from this period of AWOL after having been dropped from the rolls of the organization on 18 May 1971. The record is silent as to any punishment that might have been imposed for these absences.

The evidence shows that on 26 August 1974, court-martial charges were brought against the applicant for two additional periods of absence without leave. These periods were from 3 October to 19 October 1971 and from 28 October 1971 to
8 August 1974, the date he was apprehended by the Moultrie County Sheriff's Office in Sullivan, Illinois, and returned to military control at Fort Benjamin Harrison, Indiana.

On 8 August 1974, the applicant was transported to the Special Processing Company, US Army Personnel Control Facility at Fort Knox, Kentucky, and confined to await trial and disposition.

The evidence of record shows that on 29 August 1974, the applicant consulted with counsel and submitted a request for discharge from the service. The applicant submitted a statement in his behalf. In this statement, the applicant said that he came into the Army because he was having a hard time. He stated that he didn't have anything against the Army, but he went AWOL because his mother needed him. He added that the Army is good if you can make it but that he just wasn't cut out for it. He closed by saying that he would not give up because his wife and mother needed him.

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 by submitting his request for discharge

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he admitted guilt to the charges; that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service; 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 brigadier general, approved the applicant's discharge on
9 September 1974 and directed that he be discharged with an undesirable discharge.

The applicant was discharged on 18 September 1974 in the rank and pay grade, Private, E-1, under the provisions of Army Regulation 635-200, Chapter 10, 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 10 months and 23 days active Federal service with 504 days lost due to AWOL and confinement prior to the normal expiration of his term of service (ETS) and 586 days lost subsequent to his normal ETS.

On 24 April 1975, the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. On 4 August 1976 he was notified that, after careful consideration of his military records and all other available evidence, the board determined that he had been properly discharged.

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. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance

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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 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.

4. 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.

5. 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.

6. 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 only begun basic combat training.

7. 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

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and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his undesirable discharge to an honorable discharge.

8. 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.

9. 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

__jlp___ __aao___ __mvt___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084090
SUFFIX
RECON
DATE BOARDED	20030318
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19740918
DISCHARGE AUTHORITY	AR 635-200, Chapter 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.7000
2.
3.
4.
5.
6.