MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           10 December 2002                  
	DOCKET NUMBER:   AR2002070695

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Conrad V. Meyer		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 be upgraded.

APPLICANT STATES:  In effect, his discharge was unduly harsh.  He states that even if it were appropriate at the time, he feels that he has paid his debt.  He states that he is an upstanding American and that he "was there on Sept 11th and helped my fellow man."

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

The applicant entered active duty on 29 April 1969 and reenlisted on 1 September 1970.  He attained the rank of specialist four (SP4) on 24 November 1970. 

A memorandum, dated 28 October 1971, shows that the applicant was in a duty status when apprehended by civilian authorities.  Although the reason for the arrest is not on the correspondence, an attached Federal Bureau of Investigation (FBI) records check report shows a 15 August 1971 arrest for sale of narcotics.  No disposition of this charge is of record

The applicant received non-judicial punishment, under Article 15, Uniform Code of Military Justice (UCMJ), five times for the offenses of failure to obey orders, being absent without leave (AWOL) (7 times for a total of approximately 15 days), and for missing movement.

The applicant's Enlisted Evaluation Report (EER), dated 10 April 1972, described him as a poor soldier and rated him below average in all but one area.

The applicant evaluated by mental hygiene consultation service on 2 August 1972.  He was found to have a "sociopathic personality" with " no sense of guilt about anything."  He was found to be able to tell right from wrong and to adhere to the right.

The applicant was reported AWOL from 14 August 1972 through 13 September 1972.

On 27 September 1972 the applicant was afforded a medical examination that found that he met the medical retention standards of Army Regulation 40-501 and was qualified for separation.

On 28 September 1972, court-martial charges were preferred for 31 days AWOL. 

After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulations 635-200, 
chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive a discharge under other than honorable conditions which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge, and that there is no automatic upgrading or review of a less than honorable discharge.

The discharge authorities accepted the request for discharge under Army Regulation 635-200, chapter 10 and directed that the applicant be reduced to the lowest enlisted grade (E-1) and receive an undesirable discharge.  The applicant was discharged on 20 October 1972.

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.  An under other than honorable conditions discharge is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.   

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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.  His service is appropriately characterized by his overall record.

2.  There is no documentation to show that his discharge was unduly harsh in fact the applicant could have faced significantly hasher discharge had his request for discharge in lieu of court-martial not been accepted.  

3.  The Board notes the applicant’s statements about his post service employment and his development of a sense of responsibility; however, these activities are not so exceptionally meritorious as to outweigh the offenses that resulted in his 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

__CLA __  ___TSK_  ___CVM_  DENY APPLICATION

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

INDEX

CASE ID	AR2002070695	
SUFFIX		
RECON		
DATE BOARDED	20021210	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.7110	
2.	144.7130	
3.		
4.		
5.		
6.