MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:              24 June 1998               
	DOCKET NUMBER:      AC98-07769

	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.  The following members, a quorum, were present:

	Ms.	Karen J. Newsome		Chairperson	
	Mr.	Robert W. Garrett		Member	
	Mr.	James P. Huber		Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
	Mr.	Joseph A. Adriance		Analyst	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 an honorable discharge (HD).

APPLICANT STATES:  In effect, that it is an injustice for him to continue to suffer the adverse consequences of a bad discharge; that he received letters of recommendation; that his record of promotions showed he was generally a good soldier; that his AWOL was a minor incident; that personal problems, drug use, and alcohol use impaired his ability to serve; that his discharge was based on many offenses but they were mostly minor offenses; and that he was unable to adjust to state-side duty when he returned from overseas.

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

On 9 March 1971 the applicant entered the Regular Army for 3 years at the age of 18.  His record indicates the highest grade he held on active duty was specialist/E-4; that he was awarded the National Defense Service Medal and the Armed Forces Expeditionary Medal; and that he completed an overseas tour in Korea.  

The applicant’s record documents no acts of valor, achievement, or service warranting special recognition.  However, it does include an extensive history of disciplinary infractions including conviction by summary court-martial; acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ; and repeated incidents of AWOL.

The applicant was AWOL during the following six different periods between 
9 June 1971 and 11 April 1974: 9 June to 7 July 1971; 9 July to 13 July 1971;
26 July to 29 August 1971; 27 August to 1 November 1973; 13 to 17 December 1973; and 21 March to 11 April 1974.  Additionally, the record documents that the applicant was in military confinement from 8 to 17 September 1971.

On 8 September 1971 the applicant was tried by summary court-martial for two specifications of violation of Article 86 of the UCMJ.  The first specifications was for being AWOL from 9 to 14 July 1971.  The second specification was for being AWOL from 26 July to 30 August 1971.  He was found guilty of both specifications and sentenced to be confined at hard labor for 10 days; to forfeit $40.00; and to be reduced to the grade of private/E-1.

On 4 May 1973 the applicant accepted an NJP for violation of Article 92 of the UCMJ based on his violating a lawful general regulation by having a loaded pistol in his wall locker.  His punishment for this offense was a formal reprimand.

The evidence of record indicates that on 16 November 1973 a DD Form 458 
(Charge Sheet) was prepared preferring a court-martial charge against the applicant for violation of Article 86 of the UCMJ, for being AWOL from 
27 August to 31 October 1973.  On 21 December 1973 an additional charge was added for a second period of AWOL from 13 to 18 December 1973.  The record also contains documented evidence that on 14 January 1974 the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10 of AR 635-200.  This request was made after the applicant had been advised by counsel of the basis for his contemplated trial by court-martial, the maximum permissible punishment, and of the possible effects of a UD. The applicant also attested to the fact that he fully understood he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration and that he may be deprived of veterans benefits under state and federal law. 

On 11 March 1974 the appropriate authority approved the applicant’s request for discharge and directed a UD be issued.  On 21 March 1974 the applicant again went AWOL while pending final discharge action.  On 11 April 1974 the applicant was discharged, while in an AWOL status, after completing 2 years, 7 months, and 10 days of credible active service and accruing 173 days of time lost due to AWOL and confinement.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15 year statute 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 are 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 for soldiers separating under this chapter.

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 noted the applicant’s contentions that he should not continue to suffer the injustice of a bad discharge because his service was generally good, as evidenced by his record of promotions and letters of recommendation; in addition, the Board considered the applicant’s claim that he could not adjust to stateside duty and that his offenses were minor.  However, The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The Board noted 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, the applicant admitted guilt to the stipulated offenses under the UCMJ. Finally, the Board considered the applicant’s entire record of service for the period under review.  It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge

2.  The Board considered the applicant’s contentions that personal problems; drug use; and alcohol use impaired his ability to serve.  However, in view of the applicant’s record, the Board determined these factors were not sufficiently mitigating to warrant an upgrade to his discharge.

3. The discharge proceedings were conducted in accordance with law and regulation applicable at the time.  The reason for and the character of the discharge are commensurate with the applicant's overall record of military service.

4.  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 the aforementioned requirement.

5.  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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director