MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 31 July 2003
         DOCKET NUMBER: AR2003088098

         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:

Ms. Karen A. Heinz		Chairperson
Mr. Robert L. Duecaster		Member
Ms. Gail J. Wire		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.

APPLICANT STATES: In effect, that during the time he served in the Army, his mind was not on his work, and he apologizes for that. However, his mother was suffering from severe diabetes. He claims his brother was serving in the Republic of Vietnam (RVN), and his father was working very hard trying to run a business, which kept him away from home. He claims that his mother became ill on a number of occasions and this worried him because no one was there to take care of her. As a result, he had a hard time returning to his base at the completion of his leave because he did not want to leave her alone.

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

On 4 August 1970, he enlisted in the Regular Army for three years, and he was assigned to Fort Dix, New Jersey, to attend basic combat training (BCT) and advanced individual training (AIT).

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition, and it reveals that the applicant never advanced beyond the rank of private/E-1 (PV1) during his active duty tenure.

The record does reveal an extensive absent without leave (AWOL) related disciplinary history that began when the applicant departed his unit AWOL on
26 October 1970. He remained away for 8 days until returning to military control on 2 November 1970. Over the course of his active duty service the applicant departed AWOL on 10 more occasions and accrued a total of 535 days of time lost due to AWOL and confinement.

In July 1972, a court-martial charge was preferred against the applicant for three specifications of being AWOL for the following periods: 28 April through on or about 5 July 1972; 8 October 1971 through on or about 25 January 1972; and
17 September through on or about 20 September 1971.

On 27 July 1972, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an UD discharge, and of the procedures and rights that were 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 for discharge, the applicant acknowledged his understanding that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.
The appropriate authority approved the applicant’s request for discharge in lieu of trial by court-martial, and directed that he receive an UD. On 13 September 1972, the applicant was discharged accordingly.

The DD Form 214 issued to the applicant on the date of his separation confirms that he was discharged under the provisions of chapter 10, Army Regulation
635-200, in lieu of trial by court-martial. This document also confirms that at the time of his discharge the applicant had completed 1 year, 2 months, and 12 days of creditable active military service, and he had accrued 535 days of time lost due to AWOL and confinement.

There is no indication in the record that the applicant applied to 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 undesirable discharge.

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 his AWOL related offenses were the result of his concern for his mother’s health and his desire to care for her. However, while the Board understands the applicant’s concern for his mother at the time, it does not find this factor is sufficiently mitigating to warrant the requested relief given the applicant’s short and undistinguished record of service.

2. The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The Board notes that after consulting with defense counsel, and being advised of the consequences of requesting an administrative discharge in lieu of court-martial which included the loss of VA benefits, the applicant voluntarily requested separation in lieu of trial by court-martial.

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3. 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 overall record of service. Therefore, the Board concludes that the requested relief is not warranted in this case.

4. 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.

5. 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

__RLD__ __KH___ __GJW__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003088098
SUFFIX
RECON
DATE BOARDED	2003/08/
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1972/09/13
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of CM
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 360	144.0026
2.
3.
4.
5.
6.