PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:         12 December 2000
	DOCKET NUMBER:   AR2000044353

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Harry B. Oberg		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his undesirable discharge (UD) be upgraded with benefits.

3.  The applicant states, in effect, that he was experiencing family problems due to his wife not receiving an allotment check; that he spoke with several in his chain of command; that he wrote letters and tried everything he could in order to correct the problem to no avail; and that he departed his unit in an absent without leave (AWOL) status as a last resort to save his marriage.  The applicant further states that his acts of misconduct were minor and isolated offenses; that under current standards, the punishment he received for this misconduct was too harsh; that the Army’s failure to pay his wife caused personal and financial problems and that these problems impaired his ability to serve.  The applicant submitted a statement in his own behalf in support of this request.

4.  The applicant’s military records show that he enlisted in the Regular Army for a period of 2 years on 12 March 1971.  He was assigned to Fort Polk, Louisiana for basic combat training and advanced individual training (AIT).  Following the completion of AIT, he was awarded military occupational specialty (MOS) 71B (Clerk Typist) and was assigned to Fort Carson, Colorado as his first permanent duty station.

5.  The evidence of record indicates that during March or April 1971, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for missing formation.  The applicant indicates he called his unit to inform them he was having car trouble and would be late.

6.  On 17 June 1971, the applicant accepted NJP for failing to obey the posted speed limits on post.  His punishment consisted of reduction from private/E-2 to private/E-1 (suspended), forfeiture of $20.00 pay per month for 2 months, 40 days’ restriction and extra duty, and a letter of reprimand.

7.  The evidence of record indicates the applicant received excellent conduct and efficiency ratings while serving in the Continental United States despite receiving two NJPs.

8.  On 4 August 1971, the applicant was assigned to the Federal Republic of Germany.

9.  On 20 July 1972, the applicant accepted an NJP for failing to report to his place of duty and failing to read the bulletin board twice a day.  His punishment consisted of a forfeiture of $25.00 pay and 7 days’ extra duty (suspended).

10.  On 24 July 1972, the evidence of record indicates the applicant accepted another NJP for misconduct.

11.  On 1 September 1972, while on leave in the Continental United States, the applicant went AWOL.  He remained AWOL until he surrendered to military authorities at Fort Sill, Oklahoma on 29 November 1972.

12.  On 29 November 1972, the applicant was charged with 2 specifications of AWOL (2-20 September 1972 and 21 September-29 November 1972).  Although the charge sheet indicates 2 specifications of AWOL, the evidence of record indicates it was only one period of AWOL.

13.  On 30 November 1972, after consulting with legal counsel about his rights, the applicant requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200.  He submitted a statement in his own behalf reflecting that personal, family, and financial problems had impaired his ability to serve.

14.  On 1 December 1972, a medical examination and mental status evaluation cleared the applicant for discharge.  

15.  On 14 December 1972, the company and intermediate commanders recommended approval of the applicant’s request for discharge under the provisions of chapter 10 with a UD.  In this recommendation, the command acknowledged the applicant’s family problems.

16.  On 22 December 1972, the appropriate authority approved the applicant’s request for discharge with a UD.  Accordingly, the applicant was discharged from the Army after completing 1 year, 6 months, and 15 days of creditable military service and accruing 88 days of lost time.

17.  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 a UD.

18.  On 18 June 1980, the Army Discharge Review Board (ADRB) reviewed the applicant’s request for an upgrade of his discharge.  On 23 June 1980, the ADRB denied the applicant’s request for an upgrade of his discharge; however, two of the five board members voted for an upgrade of the applicant’s discharge to 

general, under honorable conditions.  They considered the applicant’s period of excellent service, coupled with his family and financial problems as sufficiently mitigating to grant partial relief by voting to upgrade the applicant’s characterization of service to general, under honorable conditions.  The majority of the ADRB accepted the probable existence of family and financial problems.

19.  The evidence of record indicates the applicant attained the rank of specialist/E-4 in 9 months of service.

CONCLUSIONS:

1.  The applicant’s administrative separation under the provisions of chapter 10, AR 635-200 in lieu of trial by court-martial was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

2.  The Board noted the applicant’s contentions concerning his personal, family, and financial problems and that he tried to utilize his chain of command to solve them.  Although the evidence of record does not contain supporting documentation for these contentions, the chain of command acknowledged the applicant had family problems in the endorsement of his request for approval of the chapter 10 request.  The applicant stated that he went AWOL in order to save his marriage.

3.  While the Board does not condone the applicant’s misconduct, the Board determined that the applicant’s family, personal, and financial problems did impair his ability to serve.  The board also determined that the applicant’s misconduct prior to the AWOL consisted of minor incidents.  Therefore, the Board concludes that the applicant’s excellent conduct and efficiency ratings, family, and financial problems were sufficiently mitigating to warrant an upgrade of the discharge.

4.  In view of the foregoing, the applicant’s records should be corrected, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected to show that the individual concerned was separated from service with a General Discharge Certificate on 22 December 1972 under the provisions of chapter 10, AR 635-200 in lieu of trial by court-martial.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__fne___  __lem___  __hbo____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		     __Fred N. Eichorn___
		        CHAIRPERSON

INDEX

CASE ID	AR20000044353	
SUFFIX		
RECON		
DATE BOARDED	20001212	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19721222	
DISCHARGE AUTHORITY	AR 635-200, c10	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	144.9307	
2.	144.9405	
3.	144.9411	
4.	144.9311	
5.		
6.