MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 September 2003
	DOCKET NUMBER:   AR2003088329

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. Christopher J. Prosser		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 an honorable or a general discharge.

APPLICANT STATES:  That he was absent without leave (AWOL) for 99 days because his spouse was having multiple seizures and that she needed his care.

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

On 21 March 1967, he enlisted in the Army for 3 years in the pay grade of E-1.  He successfully completed his training as a lineman.  He completed 8 months of total active service and on 21 November 1967, he reenlisted for 4 years.

Nonjudicial punishment (NJP) was imposed against the applicant on 10 September 1968, for being derelict in the performance of his duties by falling asleep while on duty.  His punishment consisted of a forfeiture of pay and extra duty.

On 15 February 1970, NJP was imposed against him for being incapacitated for proper performance of his duties as a result of alcohol.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 10 December 1970, NJP was imposed against the applicant for failure to go to his appointed place of duty.  His punishment consisted of a reduction in pay grade and a forfeiture of pay.

The applicant had NJP imposed against him on 6 January 1971, for failure to go to his appointed place of duty.  His punishment consisted of a reduction in pay grade and a forfeiture of pay.

On 22 February 1971, he was convicted by a summary court-martial of being AWOL from 14 January until 23 January 1971.  He was sentenced to confinement at hard labor for 15 days and a forfeiture of pay.

On 16 March 1971, NJP was imposed against the applicant for failure to go to his appointed place of duty.  His punishment consisted of a reduction in pay grade, restriction and extra duty.

The applicant was notified that charges were pending against him for being AWOL from 10 May 1971 until 19 August 1971.  He acknowledged receipt of the notification on 30 August 1971.  After consulting with counsel, he waived his rights and he submitted a request for 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 appropriate authority approved the request for discharge. Accordingly, on 6 October 1971, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  He had completed 4 years 2 months and 9 days of total active service and he had 127 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

On 9 April 1975, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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.

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

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The Board has noted the applicant’s contentions; however, the evidence of record fails to show that the applicant made any attempts to resolve any problems that he may have been having at home through his chain of command. Additionally, he had NJP imposed against him on five separate occasions and he was convicted by a summary court-martial as a result of his numerous acts of misconduct.  

4.  His request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid another trial by court-martial and the punitive discharge that he might have received.  Although he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

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

___cjp __  __sk ____  __jm____  DENY APPLICATION

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

INDEX

CASE ID	AR2003088329	
SUFFIX		
RECON		
DATE BOARDED	2003/09/11	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/10/06	
DISCHARGE AUTHORITY	AR 635-200, CH 10/ GOOD OF SERVICE	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  708	144.7100/AWOL	
2.  713	144.7110/FAILURE TO REPAIR	
3.  723	144.7510/DERELICTION OF DUTY	
4.		
5.		
6.