MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            16 March 2000                  
	DOCKET NUMBER:   AR1999028025

	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.

	Ms. Rosa M. Chandler		Analyst	

The following members, a quorum, were present:

	Ms. Jennifer L. Prater 		Chairperson	
	Mr. Orville W. Troesch Jr.		Member	
	Mr. Christopher J. Prosser		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:  In effect, that his general discharge (GD) under honorable conditions be affirmed or upgraded to a fully honorable discharge. 

APPLICANT STATES:  In effect, that he believes that his discharge should be upgraded as a result of his age and level of maturity.  He was only 17 years old when he departed his unit in an absent without leave (AWOL) status.  His state of mind should also be taken into consideration.  His wife was 6 months pregnant and having difficulties.  His father passed away on 10 November 1970 shortly after he departed AWOL.

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

On 17 June 1969, at age 17, the applicant enlisted in the Regular Army (RA) for 
3 years and training in military occupational specialty (MOS) 76P (Stock Control and Accounting Course).  He enlisted with a declaration of parental consent signed by his mother.  He completed the required training.  He was awarded MOS 76P and he was assigned to Fort Carson, Colorado.  On 19 February 1970, he was honorably discharged.  He had 8 months and 4 days of active service

On 20 February 1970, he reenlisted for 6 years, for training in MOS 16B (Nike Hercules Missile Crewman) and to be assigned to the 4th Battalion, 157th Artillery, Edgewood Arsenal, Maryland.  He reenlisted with a declaration of parental consent signed by both of his parents.  On 9 March 1970, he was assigned to Fort Bliss, Texas for advanced individual training.  He departed his unit in an AWOL status from 5-16 June 1970, from 20 June-1 July 1970, and from 11 July-26 October 1970.  

On 27 October 1970, he was returned to military control at the US Army Special Processing Detachment Fort George G. Meade, Maryland.  On 30 October 1970, court-martial charges were preferred for the above periods of AWOL. 

On 2 November 1970, he consulted with legal counsel and requested discharge for the good of the service, under the provisions of chapter 10, Army Regulation
635-200.  He was advised that the offense for which he was charged could lead to a bad conduct discharge (BCD).  He stated that he understood the ramifications of receiving a BCD and he declined to submit a statement in his own behalf.

On 9 November 1970, the applicant’s unit commander recommended separation with an undesirable discharge (UD).  On 24 November 1970, competent authority approved his request.  

On 24 November 1970, he was separated with a UD for the good of the service in lieu of court-martial, under the provisions of chapter 10, Army Regulation 
635-200.  He had completed 4 months and 23 days of active military service on the enlistment under review.  He had 132 days lost time due to being AWOL and in confinement. 

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 a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A UD was then considered appropriate.

On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 
4 August 1964 and 28 March 1973.  This program entitled the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge would also be considered upon application by the individual.

On 26 May 1977, the Army Discharge Review Board (ADRB) upgraded the applicant’s UD to a GD, under honorable conditions, under the provisions of the Special Discharge Review Program (SDRP).

In October 1978, Public Law 95-126 was enacted.  This legislation required that service Departments establish historically consistent, uniform standards for discharge reviews.  Previously upgraded discharges under the SDRP and other programs were reconsidered using the uniform standards.  Those individuals whose SDRP upgrades were not affirmed upon review under the historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

On 30 June 1978, the ADRB reviewed the applicant’s discharge upgrade under the provisions of Public Law 95-126.  The ADRB carefully examined the applicant’s record and confirmed that the command met all procedural requirements for separation processing and that the rights of the applicant were protected throughout the discharge process.  The ADRB considered the applicant’s record and his numerous periods of AWOL and concluded that affirmation of the SDRP upgrade of 26 May 1977 was not warranted. 
Therefore, the ADRB voted not to affirm the applicant’s discharge under uniform standards.

The second board concluded that the applicant did not meet any of the primary or secondary criteria under the SDRP Program, therefore, that Board was unable to determine why the original upgrade was granted. 

On 24 July 1978, the US Army Reserve Personnel Center (USARPC) completed a DD Form 215 (Correction to DD Form 214) showing that the ADRB had affirmed his DOD-SDRP discharge upgrade under current standards.  This DD Form 215 was sent to the applicant on 1 August 1978 and was signed by the general officer commanding the UARPC.  In this letter he also stated that the upgrade had been affirmed under current standards.  On 10 August 1978, both the DD Form 215 and the notification letter were returned undeliverable by the United States Postal System.  

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 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 the aforementioned requirement.

2.  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. There is no indication that the request was made under coercion or duress.

3.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  This Board took into consideration the applicant’s contention that he was
young and immature.  The Board noted that the applicant met entrance qualification standards to include age.  Further, the Board found no evidence that the applicant was any less mature than other soldiers of the same age who successfully completed their military service obligation.

6.  This Board determined that he had many legitimate avenues through which to obtain assistance with his personal problems without committing the misconduct which led to the separation action under review.

7.  Additionally, this Board concluded that the discrediting entries in the 
applicant’s record was not outweighed by prior service of sufficient merit to warrant an affirmation of the discharge under review.

8.	Therefore, the UD directed in 1970 was appropriate considering the facts of 
the case.  

9.  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___  ___owt___  __cjp____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028025	
SUFFIX		
RECON		
DATE BOARDED	20000316	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR 635-200, Chapter 10	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	(Deny)	
REVIEW AUTHORITY		
ISSUES         1.	A70.00	
2.		
3.		
4.		
5.		
6.