MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  2 November 2000
	DOCKET NUMBER:  AR2000040425

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. William D. Barr		Member	
	Mr. Ted S. Kanamine		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 discharge under other than honorable conditions for the period 17 February 1974 to 25 April 1975 be upgraded.

APPLICANT STATES:  In effect, that when he reenlisted as a Specialist Five (SP5), he was told that he could take his wife and child with him to Germany.  After he enlisted, he was told that he would not be able to take them due to no housing being available.  His first son had been born and died while he was in Vietnam.  He did not want to go the Germany without his wife and new born baby son.  He could not stand the separation from his new baby son and wife.

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

That he enlisted in the Regular Army on 15 April 1968 and was honorably discharged on 16 February 1971 for immediate reenlistment.  Between 
12 November 1968 and 26 January 1969, the applicant was AWOL for two different periods of two and seven days respectively for which he received punishment under Article 15 (details not available).  He served in Vietnam from 20 June 1969 to 23 March 1970 when, according to the applicant, he was sent home from a field hospital, where he was being treated for malaria, on emergency leave for the funeral of his first son.  (No medical records are currently available to the Board to confirm the applicant’s hospitalization.)  The applicant served in Vietnam for nine months and did not complete his tour there.  After his return from Vietnam, the applicant was assigned to Fort Knox.  He was awarded the Combat Infantryman Badge, the Vietnam Service Medal, and one bronze service star for participation in the Vietnam Summer-Fall 1969 campaign. The applicant had advanced to the rank of SP5.

On 17 February 1971, the applicant reenlisted for a three year term of service.  On 1 November and 9 November 1971, the applicant was punished by Article 15 for one incident of failure to go to his appointed place of duty and one incident of failure to go at the time prescribed to his appointed place of duty.  Punishments of forfeitures, extra duty, and restriction were imposed.

While enroute to a new assignment in United States Army Europe (USAREUR), the applicant went AWOL on 28 January 1972 and was declared a deserter on 
25 February 1972.  The applicant remained AWOL until he surrendered to military authorities at Fort Knox on 11 March 1974.  He was AWOL for 773 days. The applicant requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  His request was granted and he was so discharged on 25 April 1974 and reduced to the rank and pay grade of Private E-1.

Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10 (Discharge for the Good of the Service), states that a member who has committed an offense or offenses for which the Uniform Code of Military Justice (UCMJ) and the Manual for Court-Martial authorize punishment which includes a punitive discharge (bad conduct or dishonorable), 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.  An undesirable discharge under other than honorable conditions is normally considered appropriate.  According to the MCM, the maximum punishment for AWOL in excess of 30 days is a bad conduct discharge or a dishonorable discharge, confinement for one year, and total forfeiture of all pay and allowances.

Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 6-11, states that when the separation authority determines that a soldier is to be discharged from the service under other than honorable conditions, he or she will be reduced to the lowest enlisted grade.

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 was charged with AWOL in excess of 30 days, a violation which under the MCM, a court-martial could sentence the applicant to a punitive discharge (bad conduct or dishonorable), confinement up to one year, and total forfeitures.  Rather than risk any of the above sentences, the applicant voluntarily requested discharge in lieu of trial by court-martial.  His request was granted and an under other than honorable discharge was directed in accordance with Army Regulation 635-200, Chapter 10.  There is no error on injustice in this discharge.

2.  The nonavailability of housing in Germany preventing the applicant from taking his wife and son with him at the time of his movement to Germany does not mitigate his serious offense of AWOL and desertion.  It is common that soldiers transferred to Germany must wait a period of time for housing to become available before family members join their soldier in Germany or in other overseas assignments.

3.  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

__fe____  __wb___  ___tk___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040425	
SUFFIX		
RECON		
DATE BOARDED	20001102	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19740425	
DISCHARGE AUTHORITY	AR 635-200, Ch 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.144	Administrative Discharge	
2.		
3.		
4.		
5.		
6.