MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 April 2003
	DOCKET NUMBER:   AR2002077142

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Patrick H. McGann		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 effect, that at the time, his mother had lung cancer and was staying at home.  He goes on to state that he needed to be at home to care for his mother and after being turned down for a hardship discharge, he went absent without leave (AWOL) to care for his mother.  He further states that she did get better under his care and that the cancer went into remission; however, she died in 1984 from the cancer. 

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

He enlisted in Murfreesboro, Tennessee, on 15 August 1969 for a period of 3 years and training in the administration career group.  At the time of his enlistment he indicated that his mother and father were alive and that he was the second child of five children in the family, who all lived at home.

He completed his basic combat training at Fort Campbell, Kentucky, and was transferred to Fort Ord, California, to undergo his advanced individual training (AIT) in the administration career group.  He failed to complete that training and was recycled to another AIT as a field wireman. 

He completed his AIT and was transferred to Fort Benning, Georgia, for airborne training.  The record is silent as to whether he completed airborne training; however, he was transferred to Germany on 17 March 1970.

On 18 April 1970, he reenlisted for a period of 3 years and assignment to Vietnam.  He departed Germany on 7 May 1970 with a report date to the replacement detachment at Fort Lewis, Washington, of 14 June 1970.  He failed to report as ordered and was reported as AWOL from 14 June until he returned to military control on 21 June 1970.  Nonjudicial punishment was imposed against him on 22 June 1970 for the AWOL offense.  His punishment consisted of a forfeiture of pay.

He was transferred to Vietnam on 27 June 1970 for duty as a message clerk and was advanced to the pay grade of E-4 on 5 October 1970. 

On 1 April 1971, he extended his tour in Vietnam for a period of 6 months under the special leave program.  He was promoted to the pay grade of E-5 on 20 April 1971.

He departed on a 14-day leave under the special leave program and did not return as required.  He was reported as AWOL on 16 September 1971 and remained absent until he was apprehended by civil authorities in Murfreesboro, Tennessee, on 21 October 1975. 

He was returned to military control at Fort Campbell, where charges were preferred against him for the AWOL offense. 

The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214) signed by the applicant, which shows that he was discharged at Fort Campbell on 18 December 1975, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by       court-martial.  He had served 2 years, 2 months and 7 days of total active service and had 749 days of lost time due to AWOL prior to his normal expiration of term of service (ETS) and 768 days of lost time due to AWOL and confinement subsequent to his normal ETS.  

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

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 voluntary request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions was at that time and is still normally 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.  In the absence of evidence to the contrary, it must be presumed that 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.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the extensive length of his absence.

4.  The applicant’s contentions have been considered by the Board.  However, they are not sufficiently mitigating to warrant relief when the fact that there were other members of his family who could have provided care for his mother is considered and the fact that he remained AWOL for over 4 years before being apprehended by civil authorities.  

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

__sac___  __ra ____  __pm____  DENY APPLICATION

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

INDEX

CASE ID	AR2002077142	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/04/03	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/12/18	
DISCHARGE AUTHORITY	AR635-200/CH10 	
DISCHARGE REASON	GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.