MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      .

	BOARD DATE:            9 May 2002                  
	DOCKET NUMBER:   AR2002067909

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston 		Chairperson	
	Mr. John N. Slone		Member	
	Ms. Terry L. Placek		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 records be corrected to show that he received a hardship discharge.

APPLICANT STATES: That he was never informed about his hardship discharge, one way or the other.  He provides a self-authored statement that recounts his family life, his mother and grandmother’s deaths and his independence upon discharge in that he worked and raised a family without financial assistance from anyone.  He indicates he was a good soldier and he believes he is entitled to benefits from the Army.

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

On 16 August 1968, with his grandparents (legal guardians) permission, he enlisted in the Army.  He completed his required training and was awarded military occupational specialty 11D (Armor Recon Specialist).

On 18 November 1968, 3 months after enlisting, he requested a discharge based on hardship/dependency, under Army Regulation 635-200, chapter 6, in order to care for and support his grandparents.  On 30 December 1968, his request was disapproved based on the conditions, which he described existing at the time of his enlistment.  Further, he authenticated that he had been informed of the decision made on his request for hardship/dependency discharge.

During the period 7 March to 14 July 1969, he was assigned to a unit in Germany.

On 8 April 1969, he was advanced to pay grade E-3.

On 26 August 1970, he was convicted by a Special Court-Martial of being absent without leave (AWOL) for the period 14 August to on or about 21 November 1969, 8 December 1969 to on or about 7 January 1970 and 6 to on or about     15 February 1970.  His sentence included confinement at hard labor (CHL) for  30 days (suspended for 30 days), forfeiture of $50 pay per month for 4 months and reduction to pay grade E-1.  On 1 April 1070, the suspension of CHL was vacated.

On 23 December 1970, his unit commander preferred court-martial charges against the applicant for being AWOL for the period 28 April to 29 July 1970 and for escaping from lawful confinement on 26 August 1970.  He was advised of his rights.

On 23 December 1970, after consulting with legal counsel, the applicant voluntarily submitted a request for discharge under Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He acknowledged that he was guilty; that he could receive a UOTHC discharge; and that he understood the effects of receiving such a discharge.  He indicated he had consulted with legal counsel, that he had been fully advised of the nature of his rights, and the facts, which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty.  He also was informed of the possible defenses, which appeared to be available at the time and the maximum permissible punishment if he were found guilty.

On 13 January 1971, the appropriate separation authority approved his separation with an undesirable discharge and directed his reduction to pay grade E-1.

On 22 January 1971, the applicant was discharged, with a UOTHC characterization of service, under the above-cited regulation.  His separation document indicates he had 1 year, 10 months and 20 days of creditable service and 192 days of lost time.

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.  There is no evidence of record to support the applicant’s request for a hardship discharge.  It was verified that the family conditions remained the same as when he enlisted 3 months earlier, and his request was denied early on in his enlistment.  

2.  The applicant’s voluntary request for separation under 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.

3.  After being court-martialed for AWOL, and again preferred for another court-martial, he chose to request an administrative discharge rather than risk the consequence of a second court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date to substitute another type of separation for his undesirable discharge.

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.  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

_jhl____  _tlp____  __jns______  DENY APPLICATION

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

INDEX

CASE ID	AR2002067909	
SUFFIX		
RECON		
DATE BOARDED	20020509	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.