MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            5 April 2001                  
	DOCKET NUMBER:   AR2001051452

	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	
	Ms. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Harry B. Oberg		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 (UOTHC) be upgraded to honorable.

APPLICANT STATES:  That he had to take care of his seriously ill mother who was an amputee and unable to work.  After his father went to Florida to live, he claims that he was the only son and had to become the head of household.  In support of his application, he submits a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 5 November 2000.

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

The applicant enlisted in the Regular Army on 12 January 1968 for a period of 3 years.  He completed training as a field artillery crewman and was assigned to Korea from 1 June 1968 through 2 July 1969.  

On 5 August 1968, the applicant received nonjudicial punishment for being found asleep on post.  He was reduced to the grade of PV2, restricted to the compound for 14 days and 14 days extra duty to run concurrently, and forfeiture of $28.00 for 1 month.

On 19 November 1969, the applicant was convicted by a special court-martial for being absent without leave (AWOL) from 7 October 1969 to 31 October 1969.  He was sentenced to confinement at hard labor for 2 months and reduction to the grade of PV1.

On 22 December 1969, the applicant was convicted again by a special court-martial for being AWOL from 19 November 1969 to 24 November 1969.  He was sentenced to confinement at hard labor for 2 months.

On 25 March 1976, charges were preferred against the applicant for being AWOL from 20 February 1970 to 10 March 1976.

On 29 March 1976, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all benefits administered by the Veterans Administration (VA) if an undesirable discharge were issued.  The applicant submitted a statement in his own behalf.

On 30 March 1976, the separation authority approved the applicant’s request for discharge and directed that an Undesirable Discharge Certificate be issued.  The applicant was discharged on 7 April 1976 under the provisions of Army Regulation 635-200, chapter 10.  He had 1 year, 9 months, and 23 days of creditable service and 2,346 days of lost time due to AWOL and confinement.

Prior to discharge, the applicant underwent a physical examination and was found fit for separation with a physical profile of 111111.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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.

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.  In view of the applicant's numerous acts of indiscipline, it does not appear that his undesirable discharge was too severe.

4.  The contentions of the applicant have been noted by the Board; however, the applicant's personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.  

5.  Therefore, the discharge process was in accordance with applicable law and regulations and the applicant's service was appropriately characterized considering all the facts of the case. 

6.  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.

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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

JH______  CLA_____  HBO_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001051452	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010405 	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19760407	
DISCHARGE AUTHORITY	AR635-200.  .  .  	
DISCHARGE REASON	For the good of the Service – in lieu of trial by court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.