MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 13 November 2003
                  DOCKET NUMBER: AR2003089406

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Ms. Eloise C. Prendergast		Member
Mr. Ronald E. Blakely		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 a more favorable discharge.

APPLICANT STATES: In effect, that he was denied counsel and that most of his problems stemmed from the fact that he had epilepsy. In support of his application he provides five third party letters attesting to his character and work ethic.

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

He was inducted in Beckley, West Virginia, on 9 December 1952. On 19 April 1953, he was honorably released from active duty for the purpose of immediate reenlistment. On 20 April 1953, while assigned to Camp Chaffee, Arkansas, he enlisted in the Regular Army for a period of 3 years and a reenlistment bonus. He continued to serve until he was honorably discharged for the convenience of the government on 30 March 1954.

On 17 December 1958, he again enlisted in the Regular Army for a period of 3 years and served until he reenlisted in Hawaii on 11 January 1961, for a period of 6 years. He departed Hawaii in August 1963 and was transferred to Fort Bragg, North Carolina. He remained at Fort Bragg (less 6 months in the Dominican Republic) until he was transferred to Korea on 15 December 1966.

On 4 February 1967, while serving in Korea in the pay grade of E-5, he reenlisted for a period of 6 years.

On 10 March 1967, nonjudicial punishment (NJP) was imposed against him for being intoxicated during duty hours and for failure to go to his place of duty. His punishment consisted of a reduction to the pay grade of E-4, a forfeiture of pay and restriction.

On 17 April 1967, NJP was imposed against him for being absent without leave (AWOL) from 20 March to 25 March 1967. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay (suspended for 3 months), restriction and extra duty. On 22 April 1967, the imposing commander vacated the suspended portion of the punishment.

His commander also initiated action to bar him from reenlistment in April 1967 and the applicant declined the opportunity to submit a statement in his own behalf. The appropriate authority approved the bar to reenlistment in May 1967.

On 13 May 1967, the applicant was convicted by a summary court-martial of breaking restriction and appearing off-post in an improper uniform. He was sentenced to confinement at hard labor for 1 month and a forfeiture of pay.

On 17 January 1968, he was convicted by a special court-martial of being AWOL from 4 October to 28 October 1967. He was sentenced to confinement at hard labor for 60 days and reduction to the pay grade of E-2.

He departed Korea in March 1968 and was transferred to Fort Carson, Colorado. His records show he was AWOL from 6 June to 9 June 1968; however, the record is silent as to any punishment imposed.

He was transferred to Germany on 10 April 1969 and on 5 May 1969, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of extra duty and restriction.

On 3 July 1969, NJP was again imposed against him for failure to go to his place of duty. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 60 days), a forfeiture of pay, extra duty and restriction.

On 19 December 1969, he went AWOL and remained absent in a deserter status until he was apprehended by civil authorities and was returned to military control on 17 July 1974, at Fort Bragg, where charges were preferred against him.

On 22 July 1974, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also admitted that he was guilty of the charges against him or of lesser-included offenses, which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. Additionally, he acknowledged that he understood that there were no automatic provisions for upgrading a discharge under other than honorable conditions and that the percentage of such discharges upgraded by the Army Discharge Review Board (ADRB) and this Board were very low. He further elected to submit a statement in his own behalf, whereas, he asserted that he had no desire to continue his military service because he had been shuffled around during his last 2 years of service and lost his family through divorce. He further indicated that he had lost complete interest in the Army and had no intentions of continuing his military service.

He underwent a mental status evaluation and was deemed mentally responsible, able to distinguish right from wrong, and that he had the ability to adhere to the right.

During his separation physical examination, he indicated that he was in good health and that he took Dilantin for epilepsy.
His battalion commander interviewed the applicant on 9 August 1974 concerning his discharge and the applicant indicated that he was aware of the consequences of an undesirable discharge and he still desired elimination from the service. He also indicated that he was having marital problems in 1967 and in 1968 his wife began divorce proceedings. He indicated that he went AWOL in order to save his marriage. The commander noted that the applicant had not had a particularly distinguished career, that he had a substandard record and attitude and recommended that he be eliminated.

The personnel control facility commander also interviewed the applicant and he (the applicant) informed the commander that at the time he had marital problems and just got fed up and wanted to be out. He also informed the commander that he would go AWOL again to get out of the Army and that he wanted out as soon as possible.

The appropriate authority (a lieutenant general) approved the request for discharge on 22 August 1974 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 11 September 1974, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 12 years and 1 month of total active service and had 1781 days of lost time due to AWOL and confinement.

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

A review of the five third party statements submitted by the applicant with his application serve to applaud the applicant's character, his involvement with his community and his work ethic.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions was then and still is normally considered appropriate.

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 applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by courtmartial, was administratively correct and in conformance with applicable regulations.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. After being afforded the opportunity to assert his innocence before a trial by court-martial and to consult with counsel, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. In doing so he admitted guilt to the charges against him. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the length of his absence as well as his otherwise undistinguished record of service.

4. The Board has noted the applicant's contention that most of his problems stemmed from the fact that he had epilepsy; however, neither the evidence submitted with his application or the evidence of record serve to substantiate his claim. There is simply no evidence to show that his epilepsy contributed to his misconduct and there is no evidence in the available records to show that it was previously raised as an issue at any time prior to his discharge.

5. The Board commends the applicant for his post-service conduct and contributions to his community; however, his discharge properly characterizes his service at the time he served and his post-service conduct in and of itself is not sufficiently mitigating to warrant an upgrade of his discharge when compared to the facts in his case.

6. 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.

7. 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

___reb __ ___ecp__ __ao____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003089406
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/11/13
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1974/09/11
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00
2.
3.
4.
5.
6.