MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           25 June 2002                  
	DOCKET NUMBER:   AR2002067015

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Thomas Lanyi		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 a general discharge.

APPLICANT STATES:  That his understanding of the English language was minimal, at best, when he enlisted.  When he was asked to sign papers in conjunction with his discharge, he did so without understanding what they represented or meant.  He thought that he was going to be given a general discharge because he did not understand the language or Army regulations.  Since his discharge he has been a model citizen, has never been in trouble with the law, and will give his life to the country at any time.

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

The applicant enlisted in the Regular Army on 29 October 1974.  The enlistment packet he completed in conjunction with his application to enlist showed that he had entered into the United States, a Cuban citizen, on 1 August 1970, attended and graduated from a United States grammar school, and attended a United States high school for a year.

He successfully completed his initial entry training and was awarded the military occupational specialty (MOS) of helicopter repairman.

The applicant departed Absent Without Leave (AWOL) on 9 August 1975 and remained AWOL until 2 December 1975.

On 16 January 1976, the applicant was issued an Undesirable Discharge Certificate under the provisions of Chapter 10, Army Regulation 635-200.  (The applicant’s records do not contain his discharge packet.  As such, the court-martial charge sheet, the counseling statement concerning the type of discharge which could be expected and the ramifications of an undesirable discharge, and the document which shows the request being approved are not available.)

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 and applicable law and regulations, it is concluded:

1.  Since the applicant’s discharge packet is not contained in his military records, in the absence of evidence to the contrary, the Board must presume administrative regularity in his discharge process.

2.  The Board does not accept the applicant’s contention that he had a limited grasp of the English language.  He graduated from a US grammar school, and attended a US high school for a year.  In addition, he completed training in a relatively high skill MOS, an MOS which would require extensive reading.

3.  The Board also doesn’t accept that the applicant was unaware that he was requesting a discharge in lieu of trial by court-martial.  Any soldier knows it is a court-martial offense to go AWOL.  The applicant was AWOL for 116 days.

4.  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

__jns____  ___eja___  ___tl____  DENY APPLICATION

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

INDEX

CASE ID	AR2002067015	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020625	
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.	A71.00	
2.		
3.		
4.		
5.		
6.