MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            12 August 1999
	DOCKET NUMBER:   AR1999021979

	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 to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that when he was counseled and offered a discharge he was not told that it would be less than a GD.  The applicant also enclosed a claim response from the Department of Veterans Affairs (VA) indicating he should provide additional justification and issues of mitigation prior to their review of his claim.

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

On 26 January 1970, the applicant enlisted in the Regular Army for 3 years at the age of 19.  He attended basic training at Fort Campbell, Kentucky but failed to complete his training.

The applicant’s record shows that he completed just 6 and ½ months of credible active service and never advanced beyond the rank of 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 included the applicant’s being tried and conviction by two special courts-martial.

On 19 April 1970, while still in basic training, the applicant departed AWOL and remained away until 25 May 1970.  The applicant again departed AWOL on 
31 May 1970 and did not return until 23 June 1970.  These AWOL offenses were violations of Article 86 of the UCMJ and resulted in the applicant’s trial and conviction by special court-martial on 8 July 1970.  His sentence included confinement at hard labor for 3 months (suspended), and a forfeiture of $60.00 per month for 3 months.  

On 5 November 1970, the applicant was again tried and convicted by special court-martial for a violation of Article 86 of the UCMJ, for being AWOL from 
12 July to 24 October 1970.  The resultant sentence included confinement at hard labor for 5 months, and a forfeiture of $88.00 per month for 5 months.

The available records do not contain the specific circumstances surrounding the applicant’s separation.  However, the record does include a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), issued to and singed by the applicant, which identifies the reason and characterization of the discharge.  

The evidence of record shows that the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  This voluntary request would only have taken place after the applicant was fully advised of the impact of an under other than honorable conditions discharge and his statement of understanding that he could be ineligible for benefits administered by the VA.  

The DD Form 214 also documents that on 1 September 1971, the applicant was discharged with a UD, after completing 6 months and 17 days of credible active military service, and having had accrued 416 days of time lost due to AWOL and confinement.

There is no indication in the record 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 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, applicable law and regulations, it is concluded:

1.  The Board noted the applicant’s contention; however, concluded this claim was unfounded.  The evidence of record includes a properly constituted 
DD Form 214 which was signed by the applicant.  This document identifies the reason and characterization of the discharge and the Board presumed government regularity in the discharge process.  In the absence of information to the contrary, 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.  It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant would have been aware of that prior to requesting discharge.  There is nothing in the available records or in anything submitted by the applicant to overcome that presumption.  
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

__rvo ___  ___ja ___  __mw ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021979	
SUFFIX		
RECON		
DATE BOARDED	1999/08/DD	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/09/01	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.00	
2.  807	A92.17	
3.  919	A94.49	
4.  361	A01.00	
5.		
6.