MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            21 March 2002
	DOCKET NUMBER:   AR2001065876

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Linda D. Simmons		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:  In effect, reconsideration of his request to upgrade his general, under honorable conditions discharge (GD) to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that he did not receive any counseling at the time he was experiencing the family problems and homesickness that ultimately led to the misconduct that resulted in his discharge.  He states that he was married with a two year old child and been granted a deferment from the draft.  However, he requested a waiver of his deferment and enlisted in the Army for four years.  He completed basic training with no problem, but at the completion of the leave he took before attending advanced individual training (AIT), he had difficulty in mentally preparing himself to leave his family.  However, he returned to attend AIT, but immediately realized what a mistake he had made in joining the Army.  

The applicant further states that upon returning to AIT, he was more homesick than ever and being very depressed, he met with his unit commander and requested a hardship discharge, who informed him it was very hard to get a hardship discharge.  He claims that at that time, although he is very anti-gay, he was so desperate he told his unit commander that he would say he was gay in order to be get out.  The unit commander advised the applicant that this would not result in his being discharged either.  

The applicant claims that still being depressed after this meeting with his unit commander, he shot himself in the foot a few weeks later while on guard duty.  He states that this act of misconduct was his fault, but that the Army also bears some responsibility because he was never offered counseling for his depression and being homesick.   He states that a sergeant walking with him to see the battalion commander mentioned that the Army was partly at fault concerning the situation.  He claims that he was also told by his unit commander that a GD had been recommended by his battalion commander in 1972.  He indicates that he has been employed at the same location for 13 years and has enclosed some job references to show he is reliable and dependable.  He has also enclosed a copy of a letter he sent to the North Carolina National Guard offering to work free doing anything that they need done to serve his country with honor.  He claims that he is willing to do anything possible to upgrade his GD to an HD.  

Finally, the applicant asks that his discharge be upgraded as an act of mercy, and he states his willingness to do anything to accomplish this upgrade.  In support of his application, he submits a letter he sent to a Member of Congress and letters of support from employers and friends attesting to his excellent post service conduct, work record, and accomplishments.  In addition, he provides a copy of a report from the City-County Bureau of Identification arrest information files for Wake County, North Carolina, which indicates no arrest information was found; and a copy of his driving record from the North Carolina Department of Motor Vehicles.

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

On 15 October 1971, he enlisted in the Regular Army for four years.  He completed basic training at Fort Jackson, South Carolina, and he was assigned to Fort Gordon, Georgia, to attend AIT in military occupational specialty (MOS) 
72B (Communications Center Specialist).  

While attending AIT, the applicant wounded himself in the foot while on guard duty.  As a result, a court-martial charge was preferred against him for violating Article 115 of the Uniform Code of Military Justice (UCMJ).  After consulting counsel, he voluntarily requested discharge for the good of the service/in lieu of trial by court-martial.

On 4 April 1972, the applicant was separated with an undesirable discharge (UD) under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by court-martial.  The separation document (DD Form 214) issued to him at separation confirms that he had completed just 5 months and 
20 days of active military service.  It also verifies that he performed no acts of valor, significant achievement, or service warranting special recognition during his tenure on active duty.  The separation document also verifies that he received no awards or decorations while serving on active duty, with the exception of a Sharpshooter Marksmanship Badge (Rifle).

On 16 November 1978, based upon a request from the applicant, the Army Discharge Review Board (ADRB) upgraded the applicant’s discharge to a GD, in the interest of equity, based on the same contentions he now makes to this Board.  In addition, this Board originally considered and denied the applicant’s request for an upgrade of his GD to an HD on 20 December 1989, and it reconsidered and again denied this same request on 9 September 1999.  

The issues and contentions raised by the applicant during the Board’s previous considerations of this case are basically the same as those he now raises in his current application.  However, because he has again requested assistance from a Member of Congress, and has provided third party character statements that were not previously considered, the Board decided to conduct another full review of his case.

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 Board notes the applicant’s contentions that the Army was partially at fault for the misconduct that led to his discharge because he was not properly counseled at the time, that his post service conduct, accomplishments, and his willingness to serve his country should support an upgrade of his discharge as an act of mercy; and it reviewed and considered the third party statements and documentation attesting to his excellent post service conduct.  However, it concludes that none of these factors are sufficiently mitigating to overcome his very brief and undistinguished record of service or the misconduct that resulted in his discharge. 

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The Board notes that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense under the UCMJ.  At the time of his discharge, an UD was considered appropriate for members separating under these provisions of the regulation.  

3.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The Board also notes and concurs with the 1978 decision of the ADRB to upgrade the applicant’s discharge, in the interest of equity.  It also finds that this ADRB upgrade action was based primarily on the same factors the applicant now raises to support a further upgrade.  

4.  In the opinion of the Board, the applicant’s misconduct clearly diminished the quality of his very short period of service below that meriting a fully honorable discharge.  Further, the Board concludes that the ADRB upgrade was based on the same factors he now raises, and was taken in the interest of equity.  Thus, the Board concludes that the ADRB upgrade action constitutes the act of mercy now requested by the applicant and further upgrade on this basis is not warranted. 

5.  The Board finally concludes that the applicant has failed to provide sufficient new and convincing evidence that would warrant a reversal of the previous Board denials in his case, or that warrants a further upgrade of his discharge beyond the GD already granted by the ADRB.

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

__JNS     __LDS __  __JTM___  DENY APPLICATION

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

INDEX

CASE ID	AR2001065876	
SUFFIX		
RECON	1989/12/20 & 1999/09/09	
DATE BOARDED	2002/03/21	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1972/04/04	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	In Lieu of Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	100.0000	
2.		
3.		
4.		
5.		
6.