MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 March 2003
         DOCKET NUMBER: AR2003085088

         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. 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: In effect, that his Undesirable Discharge be upgraded to Honorable.

APPLICANT STATES: In effect, that he volunteered for the Army when he was 17 years old. He told the recruiter that he wanted to go into the Special Forces. The recruiter told him he had to be airborne and infantry qualified so he enlisted for the 82nd Airborne Division. He went to his commanding officer and volunteered to go to Vietnam in 1972 and the commander told him they were pulling troops out. He went on and earned his Expert Infantryman Badge, received recognition from his battalion commander for the way in which he handled the M-60 machinegun. He went to Turkey on a NATO field problem and trained with Turkish and British paratroopers. He reached the rank and pay grade of Specialist 4. He loves his country and is willing to fight and/or die for it if necessary. For the most part, he was a good soldier but when they told him he couldn't go into the Special Forces because he was not 21 years of age, he felt betrayed and wanted out of the Army. The only way out was to accept an undesirable discharge. Looking back, he knows that he was young and stupid and could have handled getting out differently. The applicant adds that he would be proud and honored, even today, to serve in any way possible, including in the reserve. In the mean time, he has earned his Associate Degree in Electronics.

In support of his application and his contentions, the applicant submitted a copy of his Associate of Science Degree in Electronics Engineering Technology from ITT Technical Institute, dated 26 January 2002; a Certificate of Appreciation in recognition of perfect attendance from ITT Technical Institute, dated 19 January 2002; a Certificate of Appreciation in recognition of honors from ITT Technical Institute, dated 19 January 2002; and an undated character reference letter authored by one of his instructors at ITT Technical Institute.

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

The applicant enlisted in the Army on 9 February 1972, when he was nearly
18 years of age, under the Combat Arms Buddy Plan, with a guaranteed assignment to the 82nd Airborne Division and Basic Combat Training at Fort
Ord, California.

Following completion of basic combat training at Fort Ord, the applicant was sent to Airborne Training at Fort Benning, Georgia. He earned his Basic Parachutist Badge and was then sent to Fort Bragg, North Carolina. He was assigned to
B Company, 2nd Battalion, 508th Infantry, to undergo advanced individual training as a Light Weapons Infantryman (11B) in an on-the-job status. He was awarded 11B as his Primary Military Occupational Specialty on 31 July 1972.

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The applicant reached the rank and pay grade of Specialist 4, E-4, on
1 November 1973. This would be the highest rank and pay grade that he would attain while in service.

On 14 March 1974, the applicant earned the Expert Infantryman Badge. This award was announced in Special Orders Number 64, published by Headquarters, 82nd Airborne Division, on 2 April 1974.

On 25 April 1974, the applicant was honorably discharged for the purpose of immediate reenlistment. On the date of his discharge, he had completed
2 years, 2 months, and 17 days active Federal service. The applicant immediately reenlisted for his present duty assignment for 4 years on 26 April 1974.

On 20 September 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his unit, on 14 June 1974, and remaining absent until
18 September 1974. The punishment imposed consisted of reduction to the rank and pay grade, Private, E-1, and to be confined to the Correctional Custody Facilities for a period of 30 days. The applicant did not appeal the punishment.

On 26 November 1974, the applicant departed absent without leave (AWOL) from his unit and remained AWOL until 6 January 1975 when he was apprehended by military authorities in Fayetteville, North Carolina, and was returned to his unit at Fort Bragg.

Charges were preferred against the applicant for his absence from 26 November 1974 to 6 January 1975.

The evidence of record shows that on 22 January 1975, the applicant consulted with counsel and submitted a request for discharge for the good of the service. The applicant did not submit a statement in his own behalf.

On 27 January 1975, the applicant departed AWOL from his unit while he was pending disposition of charges for the previous AWOL and after he had requested discharge for the good of the service. The evidence shows that his commander had recommended that his request for discharge be approved. After his departure on AWOL, the request for discharge for the good of the service was suspended. He remained absent until 19 March 1975 when he surrendered himself to military authorities at Fort Bragg.

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On 19 March 1975, additional charges were preferred against him for the additional AWOL period (27 January to 19 March 1975). The applicant was put in confinement on 19 March 1975 to await disposition of all charges.

On 28 March 1975, the applicant's chain of command resurrected the applicant's request for discharge for the good of the service and recommended approval. The chain of command unanimously recommended that an Undesirable Discharge be issued. The separation approval authority, a major general, approved the request on 14 April 1975 and directed that an Undesirable Discharge, DD Form 258A, be issued.

The applicant was separated, in compliance with his request, in the rank and pay grade, Private, E-1, on 25 April 1975. On the date of his separation, he had
5 months and 25 days active Federal service with 185 days lost time due to absence without leave on his current enlistment. The applicant had 2 years,
2 months, and 17 days honorable service in his prior enlistment for a total of
2 years, 8 months, and 12 days active military service.

A review of the applicant's service personnel records revealed no evidence (orders, letters of appreciation or achievement, memorandums, etc.) that he was recognized by his battalion commander for the way in which he handled the M-60 machinegun or that he participated in a NATO field problem training with Turkish and British paratroopers.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of 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 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. It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and the Board believes that the applicant was aware of that before requesting discharge.

4. The Board noted the applicant’s contentions that he received recognition from his battalion commander for the way in which he handled the M-60 machinegun; and that he went to Turkey on a NATO field problem and trained with Turkish and British paratroopers; however, there is no documentary evidence to support this contention.

5. The applicant provided no evidence that his age or level of maturity impaired his ability to be a good soldier or that he was any less mature than other soldiers of the same age who successfully served their country and successfully completed their military service obligation.

6. Finally, the Board considered the applicant’s entire record of service. The Board is convinced that the reason for discharge and the characterization of service were both proper and equitable. Further, the Board 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.

7. 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. 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.
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. The Board notes the applicant’s post-service educational accomplishments. The applicant is to be commended for these efforts in improving himself generally and educationally; however, the Board found that these accomplishments did not overcome the discrediting entries in the applicant’s record and did not establish a basis upon which to grant relief.

10. 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___ __rvo___ __ecp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085088
SUFFIX
RECON
DATE BOARDED	20030327
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19750425
DISCHARGE AUTHORITY	AR 635-200, Chapter 10
DISCHARGE REASON	A94.07
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.0143
3.
4.
5.
6.