MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 May 2003
	DOCKET NUMBER:   AR2003084220

	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. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas B. Redfern		Chairperson	
	Ms. Linda D. Simmons . 		Member	
	Mr. John T. Meixell		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. 

APPLICANT STATES:  In effect, that he started an allotment of $250.00 for his sister while at Fort Dix, New Jersey; he was later transferred to Vietnam.  Upon his arrival in Vietnam he realized that he was receiving his full pay and that his sister was receiving the $250.00 allotment.  He informed the payroll department on three different occasions and advised them of the situation.  He was told that the situation would be straightened out.  After six months the situation was exactly the same; nothing had changed.  He was reassigned to Fort Hood, Texas.  Upon arriving at Fort Hood he went to the payroll office; he informed them again on two separate occasions that the $250.00 allotment was not being deducted from his pay.  Once again he was told that it would be straightened out. In November of 1972, he got married and had a $160.00 allotment started for his wife.  In January 1973 his wife, informed him that the military (Army) was contacting everyone who had been overpaid.  A few weeks later he was called to the office of his company commander.  He was informed that he had to repay the money and that he had two choices on how to pay:  (1) he could pay all the money back at once or, if that was not possible, they would take his full pay check to make restitution since he did not have that much time left to serve out his enlistment; or (2) he was told that if he were to reenlist he would have time to repay the money.  He decided to reenlist.  However, his company commander said that he was not reenlistment material.  He requested two weeks leave to relocate his family to North Carolina with his parents.  Upon arriving in North Carolina he went to Fort Bragg to request a transfer, to be closer to his family.  His request was denied and he was told that he had to go back to Fort Hood.  He knew that if he went back to Fort Hood he would not receive a paycheck.  He wanted to provide for his family so he went absent without leave (AWOL).  Two years later he was picked up by the military police.  

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

After having prior active duty service the applicant enlisted in the Regular Army on 27 August 1971 for 3 years.  The highest pay grade he achieved was pay grade E-4.

Item 31 (Foreign Service) on the applicant's DA Form 20 (Enlisted Qualification Record) shows that he served in Vietnam from 7 September 1971 through
23 March 1972.  

On or about 2 May 1972, the applicant reported to B Battery, 1st Battalion, 78th Artillery, 2nd Armored Division, Fort Hood, Texas, for reassignment.

On 18 April 1973, the applicant accepted nonjudical punishment under Article 
15, Uniform Code of Military Justice, for leaving his post of duty before being relieved.  His imposed punishment was a forfeiture of $20.00 pay for 1 month.

Item 35 (Records of Assignments) on the applicant's DA Form 2-1 (Personnel Qualification Record) shows his status as AWOL on 18 August 1973.  On 
27 August 1973, the applicant's commander dropped him from the rolls of his unit.  

On or about 10 October 1973, the applicant was returned to military control and was reassigned to Personnel Control Facility Detachment, Headquarters Command, XVIII Airborne Corps, Fort Bragg, North Carolina.  

On 15 October 1973 the applicant went AWOL until being apprehended by  
military authorities on 31 March 1976.

On 1 April 1976, court-martial charges were preferred against the applicant for 
two specifications of being AWOL from 18 August 1973 to 10 October 1973 and from 15 October 1973 to 31 March 1976.

On the same day, the applicant consulted with legal counsel and 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 was afforded the opportunity to submit statements in his behalf. 
The applicant stated in effect, that he requested a chapter 10 discharge because he could not deal with the Army.  He went AWOL because he could not afford to repay the money that he owed for an allotment that was not deducted from his pay.  He had a family to take care of and bills to pay and he wanted to be near his family. 

A physical evaluation found the applicant fit for separation.

On 10 May 1976, the appropriate authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 
19 May 1976, 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 a discharge under other than honorable conditions.  

Army Regulation 635-200 sets forth the basic authority of the separation of enlisted personnel.  Chapter 10 of that regulation provided, 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 UOTHC is normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under
honorable conditions may be issued only when the reason for the soldier's
separation specifically allows such characterization.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.
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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 Board considered the applicant's contentions and his request to upgrade his discharge from an undesirable discharge to a general discharge.  

2.  The Board reviewed the applicant's service records, which included one record of nonjudicial punishment and court-martial charges for 952 days of AWOL.

3.  The applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 in lieu of trial by court-martial. 

4.  The applicant acknowledged his guilt of the court-martial charges by submitting a request for discharge.  He was advised of the implications attached to the discharge.  He acknowledged in his own hand that he understood the possible effects of an undesirable discharge, that he would be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Veterans Administration and any benefits as a veteran under both Federal and State law.

5.  Based on the applicant's record of indiscipline, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant did not meet the criteria for an honorable discharge.  The applicant's service was not satisfactory; therefore, he did not meet the criteria for a general discharge.

6.  The applicant's separation was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  The type of discharge and the reasons therefore were appropriate considering all the facts of the case.

7.  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.

8.  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

_JTM ___  _LDS ___  __TBR__ DENY APPLICATION

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

INDEX

CASE ID	AR2003084220	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030501	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Carl W. S. Chun	
ISSUES         1.	144.7100	
2.		
3.		
4.		
5.		
6.