MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 July 2002
	DOCKET NUMBER:   AR2002071941

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Karen A. Heinz		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 under honorable conditions.

APPLICANT STATES:  That he served in the Army and did not have any felony on his records, only the offense of being absent without leave (AWOL).  He was young and had never been over 20 miles from home (in Tennessee) in his life and he was scared.  He asked to be discharged, but with a general discharge under honorable conditions.  He provides no supporting evidence.

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

He was born on 22 September 1949.  He enlisted in the Regular Army on         27 January 1969.  He completed basic combat training at Fort Campbell, KY and advanced individual training at Fort Leonard Wood, MO, and was awarded military occupational specialty 36K (Field Communications Crewman).

The applicant arrived in Vietnam and was assigned to Headquarters and Headquarters Service Battery, 1st Battalion, 14th Artillery on 6 July 1969 as a wireman.  He was honorably discharged on 26 September 1969 for the purpose of immediately reenlisting on 27 September 1969.  On 28 September 1969, he requested a 30-day reenlistment leave back to the States.  He departed on leave on or about 10 October 1969.  He never returned.

On 17 November 1970, court-martial charges were preferred against the applicant charging him with five specifications of AWOL for the periods              17 November 1969 to on or about 4 February 1970, 21 February to on or about   5 March 1970, 4 May to on or about 5 May 1970, 17 June to on or about 14 July 1970, and 8 August to on or about 4 November 1970.

On 25 November 1970, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted a statement in his own behalf.  He stated that he realized while in Vietnam and when he was home on leave that he should not have reenlisted.  To make matters worse, he married on 23 May 1970 and his wife had four children by a previous marriage.  He could not provide for his family while drawing E-3 pay and, if he were reduced, he did not know how they would make it.  He realized that he would probably receive an undesirable discharge but then he could be home to take care of his family.  

The company and battalion level commanders recommended disapproval of the applicant’s request and recommended he be court-martialed.  

On 24 December 1970, the appropriate authority approved the applicant’s request and directed he receive an Undesirable Discharge Certificate.

On 24 December 1970, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an undesirable, under other than honorable conditions discharge.  He had completed 1 year, 3 months, and 29 days of creditable active service and had 213 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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.  

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.  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.

2.  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.  There is no indication that the request was made under coercion or duress.

3.  The Board notes that the applicant was 19 years old when he enlisted.  He may not have been over 20 miles from home prior to his enlistment but he successfully completed advanced individual training at Fort Leonard Wood, MO and successfully served about 2 months in Vietnam.  It is acknowledged that he requested discharge, but only to avoid trial by court-martial.  Had the recommendations of his company and battalion level commanders been followed and had he been convicted by court-martial for AWOL, he would have had a felony on his records.  There is no evidence to show he requested a general discharge under honorable conditions and in his statement he acknowledged that he would probably get an undesirable discharge.  In any case, the length and frequency of his AWOLs did not warrant granting a general discharge.
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

__AAO__  __KAH___  ___TL___  DENY APPLICATION

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

INDEX

CASE ID	AR200271941	
SUFFIX		
RECON		
DATE BOARDED	2002/07/30	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/12/24	
DISCHARGE AUTHORITY	AR 635-200, ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.