PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            13 April 2000
	DOCKET NUMBER:   AR1999031585

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred Eichorn		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Ms. Sherri V. Ward		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 discharge under other than honorable conditions be upgraded to honorable.

3.  The applicant states that he desires to clear his name so that he can apply for a government job if he so desires but more so because he does not want to be discredited by his country.  He goes on to state that he has never been in jail or prison and is not seeking any benefits.  In support of his application he submits a letter from his wife explaining what occurred in his case. 

4.  The applicant’s military records show that he enlisted in the USAR under the Delayed Entry Program (DEP) on 23 April 1977 with an obligation to enter the Regular Army on 6 September 1977 for a period of 4 years, training as an infantryman, a cash enlistment bonus of $2500, and assignment to Hawaii. 

5.  On 6 September 1977 he submitted a request to be discharged from the USAR and DEP because his mother was suffering from a heart condition.  He also submitted a letter from his mother’s physician in support of his request and indicated that he no longer desired to enlist in the Army.  The area commander interviewed the applicant and determined that the applicant’s mother had been suffering from the heart ailment for 21 plus years, that the applicant was not her primary means of support, and that there was nothing to merit his being discharged.  The commander recommended that he be required to fulfill his contractual obligations. 

6.  The applicant’s request for a hardship discharge was forwarded through channels and was disapproved on 4 October 1977.  Accordingly, the applicant was directed to report for shipment by 6 October 1977.  That date was subsequently changed to 12 November 1977 and the applicant failed to report on that date as well.  Consequently, he was reported as AWOL and on 12 December 1977 he was dropped from the rolls of the Army as a deserter.

7.  He remained absent until he surrendered to military authorities at Fort Knox, Kentucky on 10 August 1978 and charges were preferred against him.

8.  On 15 August 1978, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, in lieu of trial by court-martial.  He indicated in his request that he had not been subjected to coercion with respect to the request for discharge, and that he had been advised of the implications attached to it.  He also elected to submit a statement in his own behalf whereby he asserted that at the time of his enlistment he was undergoing some problems with his engagement and it wasn’t working out, so he thought that the Army was the right thing for him at the time the recruiter showed up at his door and asked him to enlist.  However, after getting over his confused state he realized that the Army was not for him.

9.  The intermediate commander recommended approval and opined that rehabilitation would have a minimal effect.  The appropriate authority (a major general) approved his request for discharge on 19 September 1978 and directed that he be furnished an Undesirable Discharge Certificate.

10.  Accordingly, the applicant was discharged under other than honorable conditions on 6 October 1978 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 month and 29 days of total active service and had 270 days of lost time due to AWOL.  At the time of his separation his DD Form 214 was prepared to indicate that he held the military occupational specialty (MOS) of an infantryman when in fact he had never attended any training.  His only active service performed was when he turned himself into military authorities. 

11.  There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board for and upgrade of his discharge within that board’s 15-year statute of limitations.

12.  The letter submitted by the applicant’s wife serves only to convey her version of the events as relayed to her by the applicant and further indicates that the applicant’s uncle, who at the time was serving in the Air Force, advised the applicant that he did not have to report; because, until he took a second oath, he could get out of his contract.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge.  A discharge under other than honorable conditions is normally considered appropriate, however, the regulation does provide that an uncharacterized discharge may be issued for soldiers who are in an initial entry training status.

CONCLUSIONS:

1.  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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  While the Board does not condone the applicant’s conduct and recognizes that he had a contractual obligation that was his obligation to fulfill, the Board also recognizes that had the applicant reported for basic training as directed and was not successful, he would have received an uncharacterized discharge for service under 180 days.  Accordingly, the Board finds that given the circumstances in this case, the applicant should receive an uncharacterized discharge.

4.  The Board also notes that his report of separation indicates that he was awarded the MOS of an infantryman when in fact he had never attended any training.  According, his DD Form 214 should indicate that he was still in a trainee status. 

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 discharge of the individual concerned on 6 October 1978 is uncharacterized instead of under other than honorable conditions and that he was in a trainee status at the time of his discharge instead of being an infantryman.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___sw___  __fe____  __cla____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______Fred Eichorn_______
		        CHAIRPERSON

INDEX

CASE ID	AR1999031585	
SUFFIX		
RECON		
DATE BOARDED	2000/04/13	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	1978/10/06	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	689	
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/GOOD OF SVC	
2.		
3.		
4.		
5.		
6.