MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           12 August 1999
	DOCKET NUMBER:   AR1999021680

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Ms. Meta Waller		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 undesirable discharge (UD) be upgraded.

APPLICANT STATES:  In effect, there was no error or misunderstanding in his discharge; and he is only asking that his records be reviewed and that the Board act accordingly based on what they find.

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

On 4 October 1974, the applicant entered the Regular Army for 3 years.  The applicant’s record shows that he successfully completed basic and advanced individual training at Fort Polk, Louisiana.  Upon completion of his training he was awarded military occupation specialty (MOS) 11C (Infantry Indirect Fire Crewman) and he was assigned to Fort Lewis, Washington for his first permanent duty station.

The applicant’s record shows that he completed just over 10 months of credible active service and the highest rank he attained while on active duty was private/E-2.  There are no documented acts of valor, significant achievement, or service warranting special recognition contained in the record.  However, there is an extensive AWOL related disciplinary history which includes 187 days of time lost, and the applicant’s acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ.

The applicant accrued a total of 187 days of time lost due to AWOL during his short tenure in service.  The recorded periods of AWOL are as follows:  7 to 
16 March 1975; 6 to 30 June 1975; 11 to 18 August 1975; and 19 August 1975 to 2 January 1976.  The applicant also had time lost due to imprisonment from 1 to 17 July 1975.

On 17 March 1975 the applicant accepted an NJP for being AWOL from 7 to 
17 March 1975.  His punishment for this offense was 7 days of extra duty and restriction.  

The evidence of record indicates that on 2 January 1976 a DD Form 458 (Charge Sheet) was prepared preferring three court-martial charges against the applicant, containing a total of four specifications for violation of Articles 86, 91, and 95 of the UCMJ.  The first charge, two specifications, was for AWOL from 11 to 
19 August 1975 and from 19 August 1975 to 2 January 1976; the second charge was for willfully disobeying a lawful order; and the third charge was for escaping from lawful custody.  

The record also contains documented evidence that on 26 January 1976, 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 UD 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 under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

On 6 February 1976, the appropriate authority approved the applicant's request for separation and directed issuance of a UD.  Accordingly, on 17 February 1976 the applicant was discharged after completing just 10 months and 7 days of active military service, and having had accrued 187 days of time lost due to AWOL and confinement.

There is no indication in the available records that the applicant applied to the Army Discharge Review Board, within the 15 year 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.  However, at the time of the applicant’s discharge 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, applicable law and regulations, it is concluded:

1.  The Board found the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated his misconduct.

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 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. 

3.  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.

4.  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

___rvo __  ___ja ___  __mw ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR19990211680	
SUFFIX		
RECON		
DATE BOARDED	1999/08/DD	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1976/02/17	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.00	
2.  807	144.9217/A92.17	
3.  361	144.0100/A01.00	
4.		
5.		
6.