MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           16 July 2002                  
	DOCKET NUMBER:   AR2002068664

	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:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Donald P. Hupman, Jr.		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 (UD) be upgraded to honorable.

APPLICANT STATES: That he is making this request solely on his exemplary record during the time he served in the Army from 1972 until he received his discharge in 1977.  He indicates that he was injured sometime in 1973, resulting in a herniated disc.  In April 1976, he had surgery for this condition that led to complications, resulting in being given a 100 percent (sic) profile.  He became depressed because he had aspirations of going to airborne and ranger schools.  He relates how his marital problems led to his absence without leave (AWOL) and subsequent discharge.  He turned himself into the military police at Malmstrom Air Force Base, Montana and was transported to Fort Ord, California. He was told he would be court-martialed and more than likely be reduced in rank. He opted for a chapter 11 (sic).

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

During the period 29 December 1972 to 29 September 1974, he served in the Army on active duty.  He completed his required training and was awarded military occupational specialty 11B (Light Weapons Infantryman) and received an honorable discharge.

On 30 September 1974, he reenlisted in the Army.

On 17 December 1976, upon completion of an ordinary leave, he went into AWOL status and remained until he surrendered on 9 March 1977.

Although the discharge proceedings are not in the available records, the evidence shows court-martial charges were preferred for his being AWOL for the period 17 December 1976 to 9 March 1977.  He indicated on 4 April 1977 that he had undergone a separation medical examination more than 3 working days prior to his depart from the place of separation and that there had been no change in his medical condition.  

The appropriate separation authority approved his separation with a UOTHC discharge, issuance of an Undesirable Discharge Certificate and directed his reduction to pay grade E-1.  He was reduced to pay grade E-1 effective 11 April 1977.

On 19 April 1977, the applicant was discharged, with a UOTHC discharge, under the above-cited regulation.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he had 4 years and 29 days of creditable service and 98 days of lost time.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10, of that regulation, provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time of the applicant’s separation, the regulation provided for an UOTHC discharge with the issuance of an Undesirable Discharge Certificate.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 contentions have been duly noted by the Board; however, he chose to request an administrative discharge rather than risk the consequences of a 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.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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

_DPH____  _FNE___  _MHM__  DENY APPLICATION

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

INDEX

CASE ID	AR2002068664	
SUFFIX		
RECON		
DATE BOARDED	20020716	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144	
2.		
3.		
4.		
5.		
6.