MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           28 March 2002                       
	DOCKET NUMBER:   AR2001064153

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Thomas Lanyi		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 (UD) be upgraded to an honorable discharge.  

APPLICANT STATES:  That he realizes that he should not have requested a discharge under the provisions of chapter 10, Army Regulation 635-200, however, he was young and he wanted to go home due to family problems.  He is requesting an upgrade so that he may be eligible for veteran's benefits.

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

On 20 April 1970, both the applicant’s father and his mother signed a declaration of parental consent for him to enlist in the military.  On 28 April 1970, at age 17, he enlisted in the Regular Army for a period of 3 years and training in military occupational specialty (MOS) 16D (Hawk Missile Crewman).  

On 28 August 1970, the applicant left his unit at Fort Jackson, South Carolina in an ordinary leave status.  He had orders in his possession stating that on 26 September 1970, he would report to Charleston Air Force Base, South Carolina, for movement to Germany on 29 September 1970.

On 28 September 1970, the applicant went into an absent without leave (AWOL) status and he remained AWOL until he returned to military control at Fort Jackson on 17 October 1970.  

On 21 October 1970, nonjudicial punishment (NJP) was imposed against the applicant under the provisions of Article 15, Uniform Code of Military Justice, for 
the above period of AWOL.  His punishment included reduction from pay grade E-2 to pay grade E-1 and forfeiture of $65.00 pay per month for 2 months.

On 23 October 1970, the applicant again departed Fort Jackson in an AWOL status.  On 5 February 1971, civilian authorities in Key West, Florida, apprehended him and returned him to military authorities at Fort Stewart, Georgia, on the same date.  On 11 February 1971, he was returned to military authorities at the Post Stockade, Fort Jackson.

On 11 February 1971, court-martial charges were preferred against the applicant for the period of AWOL from 23 October 1970-4 February 1971.  On the same dated, the applicant was afforded the opportunity to consult with legal counsel and he declined and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  He was advised that he could receive a UD.  He acknowledged that he understood the ramifications of receiving a UD and he declined to submit a statement in his own behalf. 

On 11 February 1971, the applicant’s unit commander recommended that his request for discharge be approved with a UD.  On 18 February 1971, the applicant's intermediate commander also recommended that his request for discharge be approved with a UD.  On 22 February 1971, the separation authority approved separation with a UD.

On 3 March 1971, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200 with a UD.  He had completed 6 months and 21 days of active military service.  He also had 129 days of lost time due to being AWOL.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) only shows his lost time from 23 October 1970 through 4 February 1971; it does not show his lost time from 28 September through 17 October 1970.

On 9 November 1973, 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 a UD.

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.  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.

2.  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.  There is no indication that the request was made under coercion or duress.  The type of discharge directed and the reasons for discharge were appropriate considering the facts of the case.

3.  The applicant's conduct was inconsistent with the Army’s standards for acceptable personal conduct and his overall quality of service does not warrant an upgrade of his discharge. 
4.  The Board determined that the applicant had many legitimate avenues through which to obtain assistance with his personal problems without committing the misconduct offenses that led to the separation action under review.

5.  The Board has taken into consideration the applicant’s contention that he was young, however, the applicant met entrance qualification standards to include age.  Further, the Board found no evidence that he was any less mature than other soldiers of the same age who successfully completed their military service obligation.

6.  Entitlement to veteran’s benefits is not a matter under the purview of this Board, but rests with the Department of Veteran Affairs.  However, the lack of entitlements does not provide a basis upon which to grant an upgrade of a discharge.

7.  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

_FNE___  __LE____  _TL_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001064153	
SUFFIX		
RECON	 	
DATE BOARDED	20020328 	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19710303	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.