MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          19 March 2002
	DOCKET NUMBER:   AR2001065635

	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	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Elzey J. Arledge, Jr.		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:  In effect, that his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES: In effect, that his family problems impaired his ability to serve and that his UD should be upgraded based on his inability to fight two battles simultaneously, the one at home and overseas.  In support of his application, he submits three letters of support that attest to his good post service conduct. 

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

On 14 December 1967, the applicant was inducted into the Army of the United States for 2 years.  Upon his successful completion of training he was assigned to the Republic of Vietnam (RVN). 

The applicant’s record reveals no acts of valor, significant achievement, or service warranting special recognition during his active duty tenure.  However, it does contain an extensive history of absent without leave (AWOL) related misconduct.  On 24 June 1975, a court-martial charge was preferred against the applicant for being AWOL from 16 June 1969 through 18 June 1975.  

On 25 June 1975, the applicant consulted legal counsel and after being advised of the basis for the contemplated trial by court-martial, the maximum allowable punishment, and the possible effects of an UD, he voluntarily requested to be discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/ in lieu of trial by court-martial.

On 1 August 1975, the appropriate authority approved the applicant’s discharge request and directed that he receive an UD and that he be reduced to the lowest enlisted grade.  On 21 August 1975, the applicant was discharged accordingly after completing a total of 1 year, 6 months, and 21 days of creditable active military service and having accrued a total of 2207 days of time lost due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statue of limitations.

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 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.  The Board notes the applicant’s contention that inability to simultaneously  handle his family problems and serve in Vietnam impaired his ability to serve and considered the third party statements attesting to his good post service conduct.  However, it finds these factors are not sufficiently mitigating to warrant the requested relief. 

2.  The evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting counsel and being advised of the basis for the contemplated trial by court-martial, the maximum allowable punishment, and the possible effects of an UD, he voluntarily requested separation for the good of the service/in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense under the UCMJ.  

3.  The evidence of record also shows that the applicant’s discharge processing was accomplished in accordance with the applicable regulations in effect at the time.  Further, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  Finally, the Board notes that the applicant chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, this is not a sufficient basis for granting the requested relief.  The Board finds the applicant’s UD was appropriate based on his misconduct and that it accurately reflects his overall record of service. 

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

__SLP__  __SK __  __EJA___  DENY APPLICATION

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

INDEX

CASE ID	AR2001065635	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/03/19	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19750821	
DISCHARGE AUTHORITY	AR635-200 .  .  .  .  .  	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	(Deny)	
REVIEW AUTHORITY		
ISSUES         1.	70.000	
2.		
3.		
4.		
5.		
6.