MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           3 October 2002                  
	DOCKET NUMBER:   AR2002072549

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Charles Gainor		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 general, under honorable conditions.

APPLICANT STATES:  He served in the National Guard for 6 years.  When it looked like he was going to be drafted, he enlisted so that he could work in supply.  Up until then, his MOS (military occupational specialty) had been infantry. The recruiter said this was possible, but after he signed the papers the recruiter told him that supply was not guaranteed.  After training, he was ordered to Korea. He immediately began having marital problems.  He asked for compassionate leave, but that was denied.  After four months he was eligible for a mid-tour leave.  He went home to work out his marital problems but found that his wife was "with someone else."  After he was absent without leave (AWOL) the first time, he went AWOL many more times.  He was in the stockade at Fort Meade, Maryland for 60 days.  He was a good soldier until the recruiter misled him and his marital problems started.  He was young and did not know what to do.

COUNSEL CONTENDS:  Counsel offers no evidence or argument beyond that submitted with the application.

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

He served in the Ohio Army National Guard for 3 years, 7 months and 24 days and was discharged as a supply sergeant because of an incompatible occupation.  

The applicant enlisted in the Regular Army on 28 December 1967 at the approximate age of 22 years and 6 months.  He had an eighth grade education.  An enlistment document, Form 628, states (apparently in his own handwriting), "I understand that I'm enlisting for regular army no other promises made."

He completed training as a rifleman and reported to B Company, 2nd Battalion, 9th Infantry Regiment in Korea on 12 April 1968.  He received nonjudicial punishment under Article 15, Uniform Code of Military Justice on 23 June 1968 for willful disobedience of a captain by bringing alcoholic beverages into the company area.

The applicant was AWOL from 2 September to 17 October 1968.  He was AWOL again on 29 November 1968 and returned to military control in 24 January 1969, then was AWOL again from 9 March to 16 April 1969.  

On 6 October 1969, in accordance with his guilty plea, a special court-martial convicted him of the second and third of those AWOLs and sentenced him to reduction to pay grade E-1, forfeiture of two-thirds pay per month for 6 months and confinement for 6 months.  On 17 October 1969 he escaped from confinement.

On 4 November 1969 charges were preferred against the applicant for AWOL from 17 to 19 October 1969 and for escaping from confinement on 17 October 1969.

The applicant consulted with counsel, on 5 November 1969, and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His request stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He states that he understood that he would be deprived of some or all benefits administered by the Veterans Administration and of any or all other benefits under both state and Federal law.  

The separation authority approved the applicant's request for discharge and directed that he be issued an Undesirable Discharge Certificate.

On 20 November 1969 the applicant was separated with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 10.  He had 11 months and 16 days of creditable service during this period of enlistment and 337 days 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.

The Manual for Courts-Martial, Table of Maximum Punishments shows that a punitive discharge is authorized for conviction of any offense of escaping from
confinement.

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 request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

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

3.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief. The Board notes that the applicant was over 23 years of age and had more that 4 years military experience at the time of his first AWOL.  There is no evidence to substantiate the applicant's assertions of marital problems or to demonstrate that extended AWOL was necessary or that it was a reasonable response to those alleged problems.

4.  There is no substantiating evidence to show that the applicant was in any way misled by his recruiter.  His records tend to show information that conflicts with his current assertions.

5.  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.

6.  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

__INW___  __WTM _  ___CG   _  DENY APPLICATION

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

INDEX

CASE ID	AR2002072549	
SUFFIX		
RECON		
DATE BOARDED	20021003	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19691120	
DISCHARGE AUTHORITY	AR635-200, Ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	A93.01	
2.	A93.07	
3.	A99.05	
4.		
5.		
6.