MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 23 September 2003
                  DOCKET NUMBER: AR2003089894

         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:

Ms. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Patrick H. McGann		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: That his undesirable discharge be upgraded to honorable.

APPLICANT STATES: That when he enlisted he was led to believe that he would have a non-combat assignment stateside due to the fact that he was the only male child and sole survivor of his family. However, he received orders to Vietnam immediately after graduating from advanced individual training (AIT). He goes on to state that his father refused to let him go into combat and threatened to disown him as his son. He further states that he enlisted with conditions that were disregarded by the Army and he is willing to provide a sworn statement from the person he enlisted with under the Buddy Plan.

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

He was 20 years of age and married when he enlisted in Alameda, California, on 2 July 1970 for a period of 2 years. At the time of his enlistment, he acknowledged by his signature that no promises (written or verbal) had been made to him. He was transferred to Fort Ord, California to undergo his basic combat training (BCT). On 8 July 1970, whiles still in the Reception Station, he extended his enlistment for a period of 1 year, in return for a guarantee that he could attend training to be a Petroleum Storage Specialist.

While in BCT, he went absent without leave (AWOL) from 22 August to 25 August 1970. The record is silent as to any punishment imposed for that offense.

He completed his BCT and was transferred to Fort Lee, Virginia, to undergo AIT as a Petroleum Storage Specialist. He completed his AIT and received orders transferring him to the Overseas Replacement Detachment at Fort Lewis, Washington, for assignment to Vietnam. He was ordered to report to Fort Lewis on 11 January 1971. His orders also contained a contact phone number and instructions to report to the nearest installation if an emergency occurred while on leave that might delay his movement.

He failed to report as ordered and was reported as being AWOL on 11 January 1971. He remained absent until he was returned to military control at Fort Ord on 24 January 1972, where charges were preferred against him for the AWOL offense.

The facts and circumstances surrounding the applicant’s discharge are not present in the available records. However, his records do contain a duly constituted report of separation (DD Form 214) signed by the applicant, which shows that he was discharged at Fort Ord on 15 February 1972, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 6 months and 23 days of total active service and had 381 days of lost time due to AWOL.

A review of the available records fails to show that the applicant ever raised the issue of being a sole surviving son or that he ever applied for such status.

There is no evidence 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.

Army Regulation 600-200 provides the guidelines for deletion from assignment instructions due to a sole surviving son or daughter status. It provides, in pertinent part, that a soldier may submit a request for deletion from assignment instructions based on an approved sole surviving son or daughter request. A sole surviving son or daughter, on his or her request or the request of his or her immediate family for noncombat duty, may not be assigned to duties normally involving actual combat with the enemy or to duty where he or she might be subjected to hostile fire. However, when the parent alone makes the request, it may be waived by the soldier. Unless entitlement to sole surviving son or daughter status is waived, the soldier will not be assigned to combat or hostile fire areas. A sole surviving son or daughter is the only remaining son or daughter in a family in which the father, mother or one or more son or daughter were killed in action or died in the line of duty while serving in the Armed Forces as a result of wounds, accident or disease, is captured or missing-in-action, or is permanently 100% disabled as decided by the Veteran Administration or one of the services and is hospitalized and not gainfully employed on a continuing basis. Neither the gaining nor retaining of sole surviving son or daughter status depends on the continued existence of any other living family member. Thus the continued existence of a family unit is not required as a prerequisite for qualification as sole surviving son or daughter status.

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 voluntary 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 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 at that time and is still 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. In the absence of evidence to the contrary, it must be presumed that 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 court-martial, 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, 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. 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 absences during a short period of time.

4. The applicant’s contentions have been considered by the Board. However, they are not supported by the evidence of record and they are not sufficiently mitigating in themselves to warrant relief, when compared to his overall record of undistinguished service. The applicant has shown no evidence to indicate that he attempted to notify officials at the time that he qualified for sole surviving son status and he has not provided evidence at this time to support his contention. The fact that he was the only surviving male child of his family, in and of itself, does not meet the requirements of such status.

5. 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.

6. 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 ____ __ao____ __pm ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003089894
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/09/23
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1972/02/15
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.