MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 June 2000
	DOCKET NUMBER:   AR2000039679

	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	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Orville W. Troesch, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Margaret V. Thompson		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.  

APPLICANT STATES:  In effect, that he would like his day in court in order for the unfair charges brought against him to be reviewed.  He claims that he served honorably in Vietnam and even deserters were given upgrades that he has been denied.  He claims to never have been given a chance to rebut the charges made against him that resulted in his discharge, which he believes were stupid.  He indicates that he would still like these charges addressed in a civilian court. 

COUNSEL CONTENDS:  The application to this Board was submitted by a District Officer of the Department of Veterans Affairs (VA) in North Carolina on 
9 March 2000.  However, the VA submitted no contentions or issues with the case.  

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

On 12 September 1975, he enlisted in the Regular Army for 4 years.  At the time of this enlistment the applicant had already completed 40 months of active service in the United States Marine Corps (USMC) and had completed almost 
5 years of inactive service in the USMC Reserve, for which he received an honorable discharge.  His USMC service included a combat service tour in Vietnam.  

He began the enlistment under review by successfully completing basic training at Fort Leonard Wood, Missouri and advanced individual training (AIT) at Fort Polk, Louisiana.  Upon completion of AIT he was awarded military occupational specialty (MOS) 11B (Infantryman) and was assigned to Fort Ord, California for his first Army permanent duty station.

The applicant’s record of Army service documents no acts of valor, significant achievement, or service warranting special recognition.  There is however an extensive record of AWOL related misconduct which includes a total of 119 days of time lost during his short tenure in the Army.  

He first went AWOL on 7 October 1976 and he was dropped from the rolls of his organization on 6 November 1976.  He remained away for 106 days until returning to military control on 20 January 1977.  He again immediately went AWOL on 21 January 1977 and remained away until 25 January 1977.  

On 26 January 1977, a DD Form 458 (Charge Sheet) was prepared preferring the following three court-martial charges against the applicant: the first charge contained two specifications of AWOL, which included the period from 7 October 1976 to 20 January 1977 and from 21 January to 25 January 1977; the second charge was for willfully disobeying the order of a superior commissioned officer; and the third was for breaking arrest on 21 January 1977.

On 2 February 1977, while under court-martial charges, the applicant again went AWOL and remained away until 9 February 1977.  On 3 March 1977, a DD Form 458 was prepared adding this incident to the court-martial charges pending against the applicant.  

On 8 March 1977, the applicant voluntarily requested discharge for the good of the service, under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial.  This request was made only after he had consulted with legal counsel who advised him of the contemplated trial by court-martial, the maximum permissible punishment, and of the possible effects of a UD. 

On 21 March 1977, the appropriate authority approved the applicant’s request for discharge and directed that he receive a UD and that he be reduced to the lowest enlisted grade in conjunction with his separation.  Accordingly, on 22 March 1977, the applicant was separated after completing 1 year, 2 months, and 
12 days of his current enlistment.  

On 5 December 1978 and again on 31 March 1982, the Army Discharge Review Board (ADRB) denied the applicant’s requests for an upgrade to his discharge and found that the discharge process was proper in all respects.

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 contentions and his prior combat and honorable service with the USMC.  However, it determined, given the applicant was appropriately recognized with an honorable discharge for his USMC service, that these factors did not provide sufficient mitigation to warrant an upgrade to the discharge under review.

2.  The evidence of record shows that he was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge and after consulting with defense counsel, he voluntarily requested separation from the Army in lieu of trial by court-martial.  In the opinion of the Board, this request for discharge shows that he wished to avoid a trial by court-martial and the punitive discharge which may have resulted.  Therefore, the Board found no basis to grant relief in this case.  
3.  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 and that the character of the discharge is commensurate with the applicant's record of military service for the period of enlistment under review.

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 this 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

_mvt____  __owt___  ___kan __  DENY APPLICATION

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

INDEX

CASE ID	AR2000039679	
SUFFIX		
RECON		
DATE BOARDED	2000/06/15	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1977/03/22	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	Good of the Svc/In Lieu of Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.