MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            8 June 2000
	DOCKET NUMBER:   AR2000038718

	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. Carl W. S. Chun		Director	
	Ms. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		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 (UD) be upgraded to general, under honorable conditions.

APPLICANT STATES:  In effect, that he went AWOL because he was not allowed convalescent leave and threatened with bodily harm from the first sergeant; and, that he was not aware he would not be eligible for many veterans’ benefits.

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

On 18 January 1971 the applicant enlisted in the Regular Army for a period of 3 years.  He successfully completed basic combat training at Fort Dix, New Jersey.  He did not complete advanced individual training.

The applicant’s record documents that the highest permanent rank he held on active duty was private/E-2 and the record contains no documented acts of valor, achievement, or service warranting special recognition.

On 4 May 1971 he accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty.  The punishment imposed was a forfeiture of $20 and 5 days of restriction and extra duty.

On 22 May 1971 the applicant departed AWOL and remained so absent until he surrendered to military authorities on 13 July 1971.  He was returned to duty at Fort Dix, New Jersey.

On 20 July 1971 the applicant again departed AWOL and remained so absent until he surrendered to military authorities on 28 October 1971.  The evidence of record shows that the applicant was convicted of criminal trespass and the unauthorized use of a vehicle plate while he was in AWOL status.  He was sentenced to 30 days in the Otsego County Jail commencing on 27 September 1971.

On 4 November 1971 he voluntarily requested discharge under the provisions of chapter 10, AR 635-200 for the good of the service in lieu of trial by court-martial.  On this date, the applicant indicated that he was advised of the nature and effects of a UD, to include reviewing a list containing most Federal veterans’ benefits. 

On 22 February 1972 the applicant was discharged and issued an Undesirable Discharge Certificate.  He was credited with 8 months and 5 days of active military service, and 154 days lost time.

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 UD is normally considered appropriate. 

The Army Discharge Review Board reviewed and denied his request for an upgrade of his discharge on 28 September 1977.

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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The evidence of record shows that the applicant admitted guilt to the stipulated offenses under the UCMJ, he consulted with defense counsel, and he was properly advised of the reason for his discharge and the characterization of service he would receive for his offenses.  He also authenticated a statement indicating that he was advised of the ramifications of a UD upon his veterans’ benefits.

3.  There is no evidence of record to support the applicant’s contention and the applicant has provided no independent corroborating evidence to support that he was denied convaslescent leave or that the first sergeant threatened bodily harm.

4.  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.

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

___SLP__  __LEM__  __AAO__  DENY APPLICATION

			       Carl W.S. Chun
	                           Director, Army Board for Correction
	                           of Military Records

INDEX

CASE ID	AR2000038718	
SUFFIX		
RECON		
DATE BOARDED	20000608	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19720222	
DISCHARGE AUTHORITY	AR 635-200, C10	
DISCHARGE REASON	144.7100.0000	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES        1.  	144.9231.0000	
2.  	144.9235.0000	
3.  	144.9323.0000	
4.	144.0100.0000	
5.		
6.