MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:             10 June 1998                 
	DOCKET NUMBER:     AC98-08304

	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.	Erin J. Olmes		Chairperson	
	Mr.	Calvin M. Fowler		Member	
	Ms.	Jennifer L. Prater		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.

APPLICANT STATES:  In effect, that he knows he made a big mistake but that he was very young at the time and didn’t  know how to deal with the unpopular war we were in.

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

On 14 June 1972 the applicant entered the Regular Army for 3 years at the age of 19.  He successfully completed basic training at Fort Knox, Kentucky and remained at Fort Knox to attend advanced individual training (AIT) for military occupational specialty (MOS) 45K (Tank Turret Repairman).  He failed to qualify in MOS 45K and was reassigned to Fort Polk, Louisiana for AIT in MOS 11B (Infantryman) which he successfully completed, at which time he was assigned back to Fort Knox for his first permanent duty station.

The applicant’s record documents no individual acts of valor, achievement or service warranting special recognition; however, there is a documented history of repeated AWOL related disciplinary infractions which includes acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on two separate occasions.

On 27 February 1973 the applicant accepted an NJP for being AWOL from 
23 February to 27 February 1973.  He was punished for this offense with a forfeiture of $50.00 and 7 days of extra duty and restriction.

On 3 April 1973 the applicant accepted his second NJP for being AWOL from 
27 March to 2 April 1973.  His resultant punishment included a forfeiture of $75.00 and 14 days of extra duty.

The evidence of record indicates that court-martial charges were preferred against the applicant for violation of Article 86 of the UCMJ for being AWOL from 30 April to 25 June 1973.  The record also contains documented evidence that on 2 August 1973, the applicant voluntarily requested discharge for the good of the service-in lieu of trial by court-martial, 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.  In addition, the applicant stated he understood the elements of the offenses for which he was charged and by making the request he was admitting his guilt to the charge against him.  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 Department of Veteran Affairs, and that he may be deprived of veterans benefits under state and federal law.

On 10 August 1973 the applicant’s unit commander recommended approval of the applicant’s request for discharge for the good of the service, in lieu of trial by court-martial and recommended the applicant’s be issued a UD.  

On 20 August 1973 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD.  Accordingly, on 10 September 1973 the applicant was discharged after completing 1 year and 24 days of active military service and accruing 65 days of time lost due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the 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.  However, at the time of the applicant’s separation the regulation provided for the issuance of a UD.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, and applicable law and regulations, it is concluded:

1.  The evidence of record and the independent evidence submitted by the applicant does not support his contention that his youth and immaturity provides sufficient mitigation to warrant an upgrade of his discharge.  The Board noted that the applicant voluntarily enlisted in the Regular Army and met all entrance qualification standards to include age.  The Board further found no evidence that the applicant was any less mature than other soldiers of the same age who successfully completed military service.

2.  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 legal 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 offense under the UCMJ.  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 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.

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