MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           16 May 2000       
	DOCKET NUMBER:   AR2000038743

	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:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Lester Echols		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 an honorable discharge (HD).

APPLICANT STATES:  In effect, that he served 25 months of his 3 year tour; that he regrets the type of discharge he received; that he is a disabled coal miner with 22 years underground; and that it would mean a lot to his family for him to have his discharge upgraded.

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

On 18 May 1966 the applicant enlisted in the Regular Army for a period of 3 years.  He successfully completed basic combat training at Fort Knox, Kentucky, and advanced individual training (AIT) in military occupational specialty 64A (Light Vehicle Driver) at Fort Leonard Wood, Missouri.

The applicant’s record documents that the highest permanent rank he held on active duty was private first class/E-3 and the record contains no documented acts of valor, achievement, or service warranting special recognition.

On 28 July 1966 the applicant received accelerated promotion to private/E2 upon completion of AIT.

On 10 October 1966 he was convicted by a special court-martial (SPCM) for violation of UCMJ, Article 86, AWOL (6 August – 1 September 1966).  He was sentenced to confinement at hard labor for 4 months and a forfeiture of $64 pay per month for 4 months.  He was confined in the Post Stockade, Fort Leonard Wood, Missouri, from 10-23 October 1966 when the confinement was suspended until 6 February 1967.

On 21 February 1967, while in Korea, he was promoted to private first class/E-3.

On 26 May 1967 he was convicted by a SPCM for committing an assault upon another soldier by cutting him on the face, left ear, left arm, left neck and chest with a dangerous weapon (knife) likely to produce grievous bodily harm.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $69 pay per month for 4 months.

On 15 June 1967 the findings of guilty in the 26 May 1967 SPCM were set aside on appeal.  It was determined that inadmissable testimony was considered by the court and written pretrial statements of witnesses were taken in closed session by the court-members.  These errors were found to be materially prejudicial to the rights of the applicant.

On 19 June 1967 he was convicted by a summary court-martial of the same charges addressed in the previous special court-martial proceedings.  He was sentenced to reduction to private/E-2 and a forfeiture of $75.

On 25 September 1967 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for violating the off-post pass policy.  The punishment imposed was a forfeiture of $12 and 14 days restriction.

On 25 October 1967, while at Fort Bragg, North Carolina, he was promoted to private first class/E-3.

On 24 July 1968 he accepted NJP for AWOL (11-17 July 1968).  The punishment imposed was reduction to private/E2 and a forfeiture of $25.

On 3 September 1968 the applicant departed AWOL and remained so absent until he was apprehended on 6 February 1969 by civilian authorities.  He was confined to the Ross County Jail and transferred to the City Workhouse, Columbus, Ohio, pending transfer to military custody. 

On 19 February 1969 the applicant was returned to military control at Fort George Meade, Maryland, where he was confined.

On 6 March 1969 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.  He consulted with counsel, did not submit a statement in his own behalf, and indicated that he understood the nature and characterization of his service.

The applicant was discharged on 8 April 1969 with an Undesirable Discharge Certificate.  He was credited with 2 years, 1 month and 9 days of active military service, and 262 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 discharge under other than honorable conditions is normally considered appropriate. 

On 12 February 1974 the Army Discharge Review Board reviewed and denied the applicant’s request for upgrade of his discharge.

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 offense 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.

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

    AAO          VBC          LE           DENY APPLICATION

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

INDEX

CASE ID	AR2000038743	
SUFFIX		
RECON		
DATE BOARDED	000516	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19690408	
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.  	144.0100.0000	
4.		
5.		
6.