MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 February 2001
	DOCKET NUMBER:   AR2000048746

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Melvin H. Meyer		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 honorable.

APPLICANT STATES:  That at the time of his misconduct he was stationed at Fort Rucker, Alabama and his mother owned a bakery in Florida.  She was in poor health and needed help because his father worked for a construction company elsewhere in Florida.  He goes on to state that he requested a hardship discharge but it was unjustly denied by his commander.  He also states that he believes it unfair that he received an undesirable discharge when he at least served and those who fled the country during Vietnam were granted amnesty.  In support of his application he submits a letter from his mother in Pennsylvania which supports his assertion that she was in poor health at the time.

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

He was born on 31 May 1952 and enlisted at Panama City, Florida on 27 October 1972 for a period of 3 years and assignment to Fort Rucker, Alabama.  He was married at the time of his enlistment.

He was assigned to Fort Rucker on 2 November 1972 for duty as a clerk typist and on 5 February 1973 nonjudicial punishment was imposed against him for being absent without leave from 17 January to 22 January 1973.  His punishment consisted of a reduction to the pay grade of E-1 (suspended for 30 days) and a forfeiture of pay.  

However, the applicant again went AWOL on 20 February 1973 and remained absent until he surrendered to military authorities on 15 April 1973 and charges were preferred against him.  Meanwhile, on 16 April 1973 the suspended punishment pertaining to his reduction in grade was vacated.  

On 17 April 1973, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He also elected not to submit a statement in his own behalf.

He underwent a mental status evaluation and was deemed qualified for separation or any action deemed appropriate by the commander.

The appropriate authority approved the request for discharge on 29 May 1973 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 31 May 1973 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 5 months and 7 days of active service during his current enlistment and had 59 days of lost time due to AWOL.

At the time of his discharge, the applicant was issued a report of separation (DD Form 214) which incorrectly indicates that his date of birth (DOB) in block 9 was 31 May 1973 and that he was separated on 31 May 1931 (block 11d).

He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 29 April 1976 and contended that at the time, his parents needed his help at the time, that he was also experiencing problems with his wife at the time, and that the commander unfairly denied his request for a hardship discharge.  He was granted a personal appearance before the ADRB and appeared with counsel before that board.  The ADRB after examining the evidence of record and hearing testimony from the applicant and his counsel, voted unanimously to deny his request.

The letter submitted by the applicant with his application and authored by his mother in Pennsylvania indicates that she was in fact in poor health and that her now deceased husband advised his son (the applicant) to request a hardship discharge so that he could help with the family business.

A review of the applicant’s records revealed a copy of a letter to the applicant’s father from a congressional representative (Senator from Florida) dated 2 May 1973, which informed the applicant’s father that he understood the financial difficulties that the applicant was experiencing and felt that he (the applicant ) would be best advised to apply for a hardship discharge.  He also provided instructions on how to accomplish the action.

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 was then and currently 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.  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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  It appears that the applicant voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the seriousness of the charges against him and his otherwise undistinguished record of service. 

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.  The applicant’s contentions and supporting documents have been noted by the Board.  However, there is no evidence in the available records to show that he actually applied for a hardship discharge, that he submitted the proper documentation to support such a request, or that he was unjustly denied such a discharge.  

6.  The Board notes that the applicant’s DOB and separation date are incorrect on the DD Form 214.  The Army Review Boards Agency Support Division will be requested to make the administrative correction. 

7.  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.

NOTE:  The Army Review Boards Support Division will be requested to correct the DD Form 214 to reflect the correct DOB (31 May 1952) in block 9 and the correct effective date of separation (31 May 1973) in block 11d.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___mkp _  _fe _____  ___mm__  DENY APPLICATION

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

INDEX

CASE ID	AR2000048746	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/02/15	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1973/05/31	
DISCHARGE AUTHORITY	AR 635-200, ch 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.