MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 January 1999                   
	DOCKET NUMBER:   AC98-11355
				   AR1999014822

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Ms. Margaret v. Thompson		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 discharge under conditions other than honorable be upgraded to honorable.

APPLICANT STATES:  That his ability to serve in the Army was impaired by his youth and immaturity, his low level of education, his deprived background, his marital and family problems, his personal problems, his use of drugs and alcohol, his pre existing  moral problems before entering the service, not working in his military occupational specialty (MOS), and not being able to submit an application for a hardship discharge.  He states that his nonjudical punishment and court-martial convictions were isolated incidents or minor offenses.  He states that he tried to serve in the Army and under current standards he would not have received an undesirable discharge.  He also states that clemency is warranted because of the suffering and injustice of receiving a bad discharge and he has been a good citizen since his separation from the Army.

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

The applicant was inducted in the Army on 1 December 1969 for a period of 
2 years.  He was 22 years old and required a moral waiver.  His highest rank attained was private (E-2).

The applicant started basic combat training (BCT) at Fort Ord, California.  He was convicted by a summary court-martial on 5 February 1970 for being AWOL from 12 January through 18 January 1970.  He also received nonjudicial punishment for disobeying a lawful order and for using disrespectful language towards an NCO.  He completed his BCT and remained at Fort Ord for advanced individual training.

He was convicted by a special court-martial on 11 December 1971 for being AWOL from 24 July 1970 through 4 November 1970.  He was sentenced to reduction to the grade of private (E-1), confinement at hard labor for 100 days, and forfeiture of $80.00 pay per month for 6 months.  The convening authority approved the sentence and the applicant was placed in confinement.

On March 1971 he completed his confinement and immediately went AWOL again until his return to military control on 15 May 1971.  

The applicant’s discharge packet is missing from his military records; however, his separation document (DD Form 214) shows he was administratively discharged on 1 July 1971 under the provisions of Chapter 10, Army Regulation 635-200 for conduct triable by court-martial.  His service was characterized as under conditions other than honorable.  He had completed only 11 months and 10 days of total active service and had 221 days of lost time due to AWOL and confinement.  
The file indicated no evidence that the applicant had submitted a request for a hardship 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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after court-martial charges have been preferred.   Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is 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.  Lacking evidence to the contrary, administrative regularity is presumed in the applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial.

2.  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, he should not be allowed to change his mind at this late date.

3.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

4.  The applicant’s good post service is not sufficiently mitigating to warrant upgrading his characterization of service.

5.  The Board notes that the nonjudicial punishment and court-martial convictions received by the applicant exhibited a continued pattern of misconduct an were not merely isolated incidents.

6.  The applicant’s contention that he was young and immature at the time is not supported by the evidence of record which showed him to be 22 years of age at enlistment.  

7.  The applicant’s contentions that his low level of education, deprived background, marital and family problems, personal problems, drugs and alcohol use, not working in his MOS, and his pre-service problems impaired his ability to serve are not supported by either the evidence submitted with the application or in the evidence of record.

8.  The evidence of record revealed no indication that the applicant was denied the opportunity to submit a request for a hardship discharge

9.  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

____X____  ____X____  ___X_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.