MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            22 April 1999     
	DOCKET NUMBER:   AR1999021387

	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. Loren G. Harrell		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Thomas A. Pagan		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)

APPLICANT REQUESTS:  The applicant, as the mother (ex-wife) of a minor next of kin (son) of a deceased former service member (FSM), requests, in effect, that the FSM’s discharge under other than honorable conditions be upgraded to honorable.   

APPLICANT STATES:  In effect, that the FSM’s discharge should be upgraded based on the fact that all veterans and draft dodgers were acquitted of any wrongdoings pertaining to the Vietnam War.  The applicant contends that she wants her son to be proud of the FSM and to receive any benefits due to him.  In support of her application, she submits a copy of their marriage certificate, son’s birth certificate, divorce decree, and the FSM’s death certificate.  

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

At age 17, with parental consent, the FSM enlisted on 15 June 1970 for a period of 3 years.  On 13 July 1970, while in basic training, he went AWOL until
4 December 1970.  He commenced another period of AWOL on 27 December 1970 and remained away until 10 February 1971.  He went AWOL again on
12 February 1971 until 24 February 1971.

On 2 April 1971, the FSM was convicted by a special court-martial for the aforementioned AWOL periods.  He was sentenced to be confined at hard labor for 4 months and to forfeit $20.00 pay per month for 4 months.  The convening authority approved the sentence on 15 April 1971.

The unexecuted portions of the sentence to confinement at hard labor and forfeitures were remitted effective 23 June 1971.

The facts and circumstances surrounding the FSM’s discharge are not present in the available records.  However, his records indicate that on 20 October 1971 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

There is no evidence in the available records to show that the FSM applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

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 discharge under other than honorable conditions 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.  In the absence of evidence to the contrary, it must be presumed that the FSM’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 appear to be appropriate considering all of the facts of the case.

3.  Careful consideration has been given to the applicant’s contentions.  However, the FSM’s brief undistinguished record of service and his multiple and extensive absences for which court-martial charges had been preferred against him is too serious to warrant relief.

4.  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

INW_____  EB_____  TAP_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021387	
SUFFIX		
RECON	           	
DATE BOARDED	19990422	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19711020	
DISCHARGE AUTHORITY	AR 635-200 CHAPTER 10	
DISCHARGE REASON	FOR THE GOOD OF THE SERVICE IN LIEU OF TRIAL BY COURT-MARTIAL	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	189	
2.		
3.		
4.		
5.		
6.