MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             11 March 1999                  
	DOCKET NUMBER:     AC98-11435
                                                AR1999017157

	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. Loren G. Harrell		Director	
	Mr. Ed Clark		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolph		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Curtis L. Greenway		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. 

APPLICANT STATES:  In a 4-page letter, that he immigrated to the United States in 1962 from Germany and had difficulty adjusting because of the language barrier; that he was inducted (in 1970) at age 22; that his mother, because of her experiences in World War II, was terrified of war and anything related to a military movement and that he carried the same fear with him as he entered basic training; that he was married in 1972 and learned to be a responsible husband; that he has worked for 25 years and has enjoyed the freedom and privileges of a resident of the United States; and that he has a strong desire to clear his name and become a citizen of the United States.  In support of the application, he submitted numerous documents attesting to his good character following his separation from the service.

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

He was born in Hamburg, Germany on 2 September 1947 and entered the United States on 23 February 1962.

On 12 May 1970, while residing in Orange, California, he was inducted.  

On 25 May 1970 he began basic training.  Approximately 2 weeks later, on 
7 June 1970, his commander determined that he was AWOL and, on 7 July 
1970 he was dropped from the rolls of his unit as a deserter.

On 15 May 1971 the applicant was admitted to a civilian hospital after a suicide attempt involving the ingestion of several seconal tablets.  He was diagnosed as suffering from an acute adjustment reaction of adult life with severe situational depression and considered a severe suicide risk.

On 15 June 1971 he was returned to military control.

On 12 July 1971, after being counseled by a military lawyer, he requested to be discharged for the good of the service under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.

On 13 August 1971 the applicant's commander recommended approval of his request stating, in part, that the applicant had told him that he did not think that he could ever be a soldier and that "From observations, I must agree that I do not think that he will ever make a soldier.  Furthermore, I do not believe he will ever be man enough to face reality and shoulder the burdens of life."  The commander enclosed a report of psychiatric evaluation which, in part, confirmed the adjustment reaction diagnosis made at the civilian hospital but advised that the possibility of the applicant making another suicide attempt was minimal.  Administrative separation was recommended as being in the best interest of the Army and the applicant.

On 24 August 1971 his request was approved by the convening authority, a major general, who directed that he be issued an Undesirable Discharge Certificate.

On 30 August 1971 he was discharged.

There is no evidence of record which would indicate that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 
15-year statute.

On 22 December 1997, more than 26 years after his discharge, his undated application to this Board was received at the Army Reserve Personnel Center.

Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973.  Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights.  The clemency discharge did not effect the underlying discharge and did not entitle the individual to any benefits administered by the VA.

On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 
4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

In October 1978, Public Law 95-126 was enacted.  This legislation denied VA benefits to any former service member who had been AWOL for more than 
180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs was required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

The Manual for Courts-Martial, Appendix 12, shows that the maximum punishment for an individual who is convicted of being absent without authority from his or her unit for more than 30 days is a bad conduct discharge, confinement for 1 year, and forfeiture of all pay and allowances.

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.  At the time of the applicant's separation, an undesirable discharge was 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.  The applicant was determined to be AWOL 13 days after reporting to his basic training unit.  He was not returned to military control until more than 1 year later.

2.  After being counseled by a military lawyer, the applicant requested to be separated under the provisions of Army Regulation 600-200, Chapter 10, in lieu of trial by court-martial which could have resulted in him being sentenced to a bad conduct discharge, confinement for 1 year, and forfeiture of all pay and allowances.  His request was approved.

3.  The applicant's 4-page letter and documents submitted in support of the application have been carefully reviewed.  The Board notes, however, that there is no evidence which would indicate that the applicant took advantage of the opportunity provided under the provisions of Presidential Proclamation 4313, and that his upbringing prior to entering service and his subsequent apparent record of good character over a period of years do not provide a sufficient basis to warrant an upgrade of his 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

CLA ____  VBC____  CLG ____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-11435/AR1999017157	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 March 11	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19710831	
DISCHARGE AUTHORITY	AR 600-200, Chapter10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.