MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           5 February 2002
	DOCKET NUMBER:   AR2001061756

	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. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger W. Able		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: In effect, that the Under Conditions Other Than Honorable (UCOTH) characterization of his discharge be upgraded.

APPLICANT STATES:  In effect, that when he entered the Army, from Puerto Rico, he did not understand, write, or speak English.  Soon after entering basic training his inability to understand English caused him to misunderstand and oversleep.  The sergeant who discovered him sleeping reacted by becoming very upset, turning his bed over, hitting him and throwing away his belongings.  He did not understand what was happening.  He soon suffered a nervous breakdown and left the base without authorization.  He was later caught, court-martialed and discharged.  The Department of Defense sent him to a hospital where he was hospitalized for a month.  He has still not overcome this nervous condition.  He has been under treatment all of his life and has not been able to maintain a job due to his nervous condition.  He is presently disabled and receiving social security benefits.

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

He enlisted in Puerto Rico for the Regular Army on 20 December 1971 for a period of two years.  At the time of enlistment, the applicant was 23 years old, was married with two dependents, had acquired a General Equivalency Diploma, and had an Armed Forces Qualification Score of 30, which placed him in Mental Category IV (indicating soldiers with slow learning abilities).

On 9 March 1973, nonjudicial punishment was imposed against the applicant for being derelict in his duties (he left his wall locker unlocked).  His punishment consisted of forfeiture of $15.00 for one month.

No charge sheet is present, but most likely charges were preferred against him for being absent without leave (AWOL) for the period 13 March 1972 to 8 November 1973.  

On 13 November 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.  He indicated in his request that he understood he could receive a UCOTH discharge.  He personally made the choice to submit his request and acknowledged by his signature that he had been fully advised in this matter. 

In a statement, accompanying his request for discharge, the applicant indicated that he did not like the Army, that he had to get out of the Army to solve his problems, and that he knew he would get an undesirable discharge and lose his benefits, but he wanted to get home.  An interpreter completed the form on his behalf.

A mental status evaluation indicates that the applicant was evaluated as having a “Dull” level of alertness, but was capable of understanding and participating in board proceedings.

On 19 November 1973, his commander recommended that he be eliminated from the service and that he be issued an undesirable discharge.

On 23 November 1973, the appropriate authority approved his request for separation under the provisions of AR 635-200, chapter 10 with an UCOTH discharge and directed the issuance of a DD Form 258A, Undesirable Discharge Certificate.  Accordingly, on 3 December 1973, he was discharged.

On 2 August 1976 and 27 October 1978, the Army Discharge Review Board informed the applicant of their denial of his request for an upgrade of his discharge.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions 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 Board considered the applicant’s age, educational level and English language level at the time of enlistment.  The applicant met all entrance qualification standards.  The Board found no evidence to indicate that he was any less mature than other soldiers of the same age who successfully completed their military service obligation.  Further, the Board found no evidence that indicates his level of education or ability to learn in anyway contributed to his misconduct or to his inability to serve.

2.  The evidence available indicates that the chapter 10 discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

3.  There is insufficient evidence in the available records to indicate that the applicant suffered a nervous breakdown in basic training.  As indicated above, chapter 10 is a voluntary action on the part of an accused that has been charged with a crime punishable by court-martial and requires counseling by a military attorney before the accused is permitted to request the discharge.  The applicant was AWOL for 606 days, an extensive period.  A conviction at a court-martial could have possibly resulted in a prison sentence and the permanent stigma of a federal conviction.  Therefore, it appears that the applicant requested the administrative discharge he received rather than risk the consequences of a trial by court-martial.

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 satisfies 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

___kak __  __rwa___    ___jh__  DENY APPLICATION

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

INDEX

CASE ID	AR2001061756	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020205	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1. .  144.0136		
2.		
3.		
4.		
5.		
6.