PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           2 July 2002
	DOCKET NUMBER:   AR2002071335

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Arthur O. Omartian		Member	
	Mr. Raymond J. Wagner		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
records
	Exhibit B - Military Personnel Records (including
advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his undesirable discharge be upgraded to a general discharge under honorable conditions.

3.  The applicant states that he tried to be a good soldier and tried real hard for 12 days before he went absent without leave (AWOL).  Because of his educational level and depression, he found it very hard to fit in and do the training.  He provides as supporting evidence a letter from a family friend who states the applicant quit school in the 6th grade by order of his father, who thought the applicant was not learning and/or had a learning disability; his Report of Transfer or Discharge, DD Form 214; his grammar school grade reports; and an undated, unidentified document (possibly from the Social Security Administration) which noted that the applicant was identified (in 1991 and 1992) as having borderline intellectual functioning or (in 1996) was mildly mentally retarded and that he suffered from major depression with isolative tendencies and social impairments.

4.  The applicant’s military records show that he was born on 21 February 1952.  He completed the 6th grade (he repeated 1st grade, passed 2d grade with “As” and “Bs,” passed 3d grade with “Cs,” passed 4th grade with “Cs” and “Ds,” passed 5th grade with “Cs” and “Ds” and one “B,” passed 6th grade with mostly “Ds,” and failed 7th grade twice).  He enlisted in the Regular Army on 3 August 1970 with an Armed Forces Qualification Test (AFQT) score of 22 (category IV, the lowest of four possible categories).

5.  The applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on 17 August 1970 for being AWOL from 15 – 16 August 1970.

6.  The applicant departed AWOL from 29 August – 28 September 1970.  His Enlisted Qualification Record, DA Form 20, shows he had another period of AWOL from 14 – 21 October 1970 that is not reflected on his DD Form 214.

7.  On 31 March 1971, the applicant was convicted by a special court-martial of being AWOL from 7 November to on or about 28 December 1970 and from       30 December 1970 to on or about 23 February 1971.  He was sentenced to confinement at hard labor for 105 days.  

8.  On 12 August 1971, the applicant completed a separation physical and was found qualified for separation.

9.  The applicant’s discharge packet is not available.

10.  On 27 September 1971, the applicant was discharged with an undesirable discharge, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  He had completed 4 months of creditable active service and had approximately 299 days of lost time. 

11.  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.  A discharge UOTHC is normally considered appropriate.  If warranted, however, the discharge authority may direct an honorable or general discharge.  

CONCLUSIONS:

1.  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 and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  While the conduct which led to the applicant’s separation cannot be condoned, it appears that his contention that his low educational level made it hard for him to train (there is no evidence to show he suffered from depression at the time), therefore leading him to go AWOL, has some merit.  He completed only a 6th grade education and his grade reports show that he had not done well in school since the 2d grade.  While the unidentified document he provided showed that he was not diagnosed as having borderline intellectual functioning until 1991 or as being mildly mentally retarded until 1996, these conditions are usually present from birth or childhood.  

3.  Had the applicant served in the Army only a few years later, most likely he would have been discharged under the Trainee Discharge Program.  That program expeditiously discharged trainees who lacked the necessary motivation, discipline, ability or aptitude to become productive soldiers.  The applicant has provided sufficient evidence to justify upgrading his discharge based upon mitigating circumstances.

4.  The applicant should understand that, if he attempts to obtain veterans benefits based upon this upgrade, the Department of Veterans Affairs grants benefits based upon their own policies and regulations.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.
RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was given a general discharge from the Army on 27 September 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.

2.  That the applicant be issued a General Discharge Certificate from the Army of the United States, dated 27 September 1971, denoting a general discharge in lieu of the undesirable discharge now held by him.

3.  That the applicant be issued a new DD Form 214 reflecting the above corrections.

BOARD VOTE:  

__KAK__  __AOA__  __RJW__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Karol A. Kennedy___
		        CHAIRPERSON

INDEX

CASE ID	AR2002071335	
SUFFIX		
RECON		
DATE BOARDED	2002/07/02	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1971/09/27	
DISCHARGE AUTHORITY	AR 635-200, ch 10 	
DISCHARGE REASON	A70.00	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.