MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:  21 December 1999
	DOCKET NUMBER:   AR1999026307

	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. Hurbert O. Fry		Chairperson	
	Ms. Debra Williams		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:  That his undesirable discharge be upgraded to honorable.

APPLICANT STATES:  That he was provided an earlier upgrade through the amnesty program but it is not recognized by the VA.  He submits several character reference letters in support of his application.

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

He enlisted and entered active duty on 22 June 1970.  While still in training he was punished twice under Article 15, UCMJ for two AWOL periods totaling 47 days including one period of desertion.  It appears that he completed training as an intelligence specialist but it does not appear that he ever served in that capacity due to repeated AWOL time.

The applicant was AWOL again from 26 September to 17 October 1971 and from 27 October to 21 November 1971.  Charges were preferred for the AWOL offense and on 13 January 1972, after consultation with counsel, he requested discharge in lieu of trial by court-martial.  In his request he acknowledged that he might be deprived of many or all veteran’s benefits and encounter prejudice in civilian life based on the type of discharge he might receive.  He submitted a statement in his behalf.  The statement described numerous health issues from civilian life.  He had been denied service in the Air Force and Navy because of his health problems.  He had a lot of problems with his back and knee.  His AWOL periods were to seek medical treatment that he did not receive in the Army.

The separation authority approved the request and directed issuance of an undesirable discharge.  The applicant was AWOL again from 8 February 1972 until his effective discharge on 22 February 1972.  He was separated under authority of Army Regulation 635-200, chapter 10.  He had 1 year, 4 months, and 11 days creditable service and 110 days lost time.

The character reference letters submitted by the applicant from various sources discuss his high work habits, ability, dependability, and dedication during his post service career.

Effective 8 June 1977 his discharge was upgraded to under honorable conditions under the DOD Special Discharge Review Program (SDRP).  On 26 July 1979 his discharge was reviewed again under Public Law 95-126 and his upgrade was not affirmed.  On 12 July 1979 the VA determined that he was ineligible for entitlements administered by that agency as determined by their own criteria.

On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

In October 1978, Public Law 95-126 was enacted.  This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs was required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

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 have been 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.

The Uniform Code of Military Justice, table of maximum punishments, provides for 1 year in prison and a bad conduct discharge as a result of trial by court-martial for the offenses charged.

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.  Considering all the facts in this case, including the evidence of record and that submitted by the applicant, he is not entitled to the relief he now seeks.  The discharge he received in lieu of trial by court-martial was appropriate considering the seriousness of the lengthy AWOL.

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.  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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

4.  While the Board is empathetic, the applicant's personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

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

__HF___  ___DW___  __MW__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999026307	
SUFFIX		
RECON		
DATE BOARDED	19991221	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19970608	
DISCHARGE AUTHORITY	AR 635-200 Ch 10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.