MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 August 2000
	DOCKET NUMBER:   AR2000035709

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. John Saputo		Member	
	Ms. Karen A. Heinz 		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:  That his undesirable discharge be upgraded to general under honorable conditions.

APPLICANT STATES:  That his military service will indicate that he was a good soldier and his record warrants an upgrade to general.  He served well until faced with a transfer to a combat zone.  He was a sole surviving son and was denied his request to terminate this transfer.  At that point, he went AWOL (absent without leave) in order to work with his family and friends in an effort to obtain the Sole Surviving Son Program.  He adds that things were very confusing about the Vietnam War and, in a different time, he would have not been faced with such turmoil at the age of 18.  He is asking that his age and good service record be taken into consideration, and the upgrade to general be granted.

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

He enlisted on 6 February 1970 for a period of 3 years.  After training at Fort Eustis, Virginia, he was transferred to the US Army Overseas Replacement Station, Oakland Army Base, California, on 5 October 1970 for further assignment to Vietnam.

On 5 February 1971, while at the Oakland Army Base, the applicant was administered nonjudicial punishment under Article 15, Uniform Code of Military Justice, for AWOL from 18 January 1971 to 5 February 1971.  His punishment included reduction in grade from private E-2 to private E-1.

On 28 May 1971, the applicant was formally charged with AWOL from 13 February 1971 to 19 May 1971.  On 9 June 1971, he consulted with counsel and voluntarily requested 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 so doing, he acknowledged that he was guilty of the charges against him which authorized the imposition of a bad conduct or dishonorable discharge, and added that he had no desire for rehabilitation or further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He submitted a statement in his own behalf, in which he stated that he had been AWOL four times and wanted out of the Army because he could not do what he wanted to do while in the Army.

On 12 July 1971, the separation authority, a major general, approved the request and directed the applicant be issued an Undesirable Discharge Certificate.

The applicant was discharged on 16 July 1971 at Fort Ord, California.  He had 
1 year and 23 days of creditable service and 138 days of time lost.

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.

On 26 February 1976, the Army Discharge Review Board denied the applicant’s request for upgrade of his 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 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.

2.  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.

3.  There is no evidence of record that the applicant was a sole surviving son, or that he applied for deletion of assignment instructions to Vietnam as a sole surviving son and was denied such.

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

__mdm__  __js_____  __kah___  DENY APPLICATION

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

INDEX

CASE ID	AR2000035709	
SUFFIX		
RECON		
DATE BOARDED	20000810	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19710716	
DISCHARGE AUTHORITY	AR635-200 CH10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.