MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:                              
	DOCKET NUMBER:   AC98-09009

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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, that his under other than honorable conditions (UOHC) discharge be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that standards have changed since his discharge.

COUNSEL CONTENDS:  In effect, that given the applicant’s young age his going AWOL in reaction to family problems was not unusual; and that, in view of his good prior service and post service good citizenship an upgrade of his discharge is recommended.

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

The applicant entered the Regular Army on 2 September 1976 for a period of 
3 years at the age of 18.  He successfully completed basic training at Fort Leonard Wood, Missouri and advanced individual training (AIT) at Fort Benning, Georgia.  Upon completion of AIT the applicant was awarded military occupational specialty (MOS) 11B (Infantryman) and assigned to Fort Knox, Kentucky for his first permanent duty station.

The applicant’s record indicates the highest grade he held on active duty was private first class/E-3.  The record documents no individual acts of valor, achievement, or service warranting special recognition. 

The evidence of record indicates that on 1 December 1977 a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violation of Articles 86 of the UCMJ.  The charge was for being AWOL from 19 September 1977 to 16 November 1977. 

The record also contains documented evidence that on 20 December 1977 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.  The applicant’s request was made only after he had been advised, by his appointed military counsel, of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOHC if the request were approved; and of the procedures and rights available to him.  In complying with the procedures the applicant completed a statement in which he attested to the fact that the request was being made of his own free will; and that he had not been subjected to coercion whatsoever by any person.  He acknowledged that he had been advised of the implications attached to the action; that he understood the elements of the offenses for which he was charged; and that he was guilty of the charge against him, or of a lesser included offense, which authorized the imposition of a bad conduct or dishonorable discharge.  The applicant also stated his understanding that he would be deprived of many or all Army benefits; that he may be ineligible for  benefits administered by the Department of Veteran Affairs; and that he may be deprived of veterans benefits under state and federal law.

On 13 February 1978 the appropriate authority approved the applicant's request for separation and directed issuance of a UOHC discharge.  Accordingly, on 
23 February 1978 the applicant was discharged after completing 1 year, 
3 months and 24 days of military service and accruing 59 days of time lost due to AWOL.

There is no evidence that the applicant ever applied to the Army Discharge Review Board (ADRB) within the 15 years statute of limitations for an upgrade to his 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 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.  

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 applicant’s contention that standards have changed is unfounded.  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 order to avoid a court-martial and the punitive discharge that he might have received. 

2.  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.

3.  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