MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  15 September 1999
	DOCKET NUMBER:   AR1999022735

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Kathleen A. Newman		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:  That his general discharge be changed to honorable; that the record of AWOL from 14 March to 1 August 1973 be removed from his record; that his lost time be adjusted from 972 days to 471 days; that his VA loan certificate be restored; that he be given credit for an additional 10 years of service and allowed to retire; that he be paid 6 months pay when he was incorrectly charged with AWOL; that he be compensated for the loss of his home, furniture, appliances, and car, and he be compensated for pain and suffering.

APPLICANT STATES:  In an undated and unsigned attachment to his DD Form 149 he recounts the circumstances of his first AWOL beginning in August 1968 for 330 days.  In February 1973 he was denied reenlistment through a bar to reenlistment.  He was then extended and had his expiration of term of service (ETS) changed without his knowledge.  He was then listed as AWOL for 6 months and went without pay that caused him to lose all of his property.  There is no record of punishment for this AWOL so he could not have been AWOL.  He submits copies of his military records, several leave and earnings statements (LES), and several morning report documents in support of his application.

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

He reenlisted in the Regular Army on 13 March 1967 for 6 years which established his ETS as 12 March 1973.  He had 4 years prior active duty and was serving in grade E-5.  His available records for his prior period of service show that he punished under Article 15, UCMJ for AWOL from 10 to 24 July 1964 and that on 11 August 1969 he was convicted by special court-martial of 330 days AWOL.  The approved sentence included reduction from grade E-6 to E-4.

Copies of morning report entries show that effective 7 March 1973 the applicant was placed on emergency leave for 7 days.  Another entry shows that he was put in an AWOL status from the prior leave status effective 14 March 1973.  Effective 12 April 1973 he was reported as a loss from the unit and dropped from the rolls (DFR).  Effective 2 August 1973 he was reported as returned from DFR status and attached to his former unit as present for duty pending determination of his status.

His LES for February 1973 shows his ETS as 12 March 1973 and states that this is his last automated (JUMPS) LES prior to his ETS.  His LES for March 1973 shows his ETS as 12 June 1973 and contains the statement that his ETS date has changed.  His April LES states that he was AWOL for that month beginning on 14 March 1973 and that he was on leave from 7 to 13 March 1973.  It also shows that the money he would have earned while he was in an AWOL status in March was collected back.  He also received no pay due in April and May 1973.  NOTE:  Neither the 3 month extension of his enlistment as indicated by the March 1973 LES nor the bar to reenlistment are in the available record.
On 16 August 1973 charges were preferred on the applicant for the AWOL offense.  On 28 August 1973, after consulting with a Judge Advocate General’s Corps legal counsel, he submitted a request for separation for the good of the service in lieu of trial by court-martial.

In an accompanying statement he wrote that he was requesting separation instead of being kicked out dishonorably.  Additionally, he stated that he had no choice and knew what he was doing when he went AWOL.  He had to stay with his children until he could find someone to take them or risk losing them.  When this was taken care of he returned to duty on his own.

The unit commander recommended the applicant receive an undesirable discharge and the battalion commander recommended disapproval of the request for discharge which would allow the court-martial to take place.

The separation authority, a major general, approved the request for separation and directed issuance of a general discharge.  Effective 11 September 1973 he was discharged in grade E-5 under honorable conditions with 9 years, 2 months, and 13 days creditable active duty and 471 days lost time.  His 14 days AWOL in 1964 are not accounted for on his DD Form 214 (report of separation).

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, 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.  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.

2.  The contentions of the applicant have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  The discharge process was in accordance with applicable law and regulations and the applicant's service was appropriately characterized.

3.  The overwhelming evidence of record indicates that he departed on emergency leave on 7 March 1973 and his status was changed to AWOL on 14 March 1973 when he failed to return.  Had the applicant not executed a 3 month extension of his enlistment as indicated by his March 1973 LES he would not have been placed on emergency leave beyond his ETS, but separated 6 days early for the convenience of the government.  His explanation of events in light of his statement supporting the discharge request lacks creditability.

4.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his discharge.  Since there is no relief forthcoming from this Board concerning his discharge there is no basis to address his additional requests.

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

__JA___  ___TK___  __KN____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022735	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990915	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.