MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           28 September 2000 
	DOCKET NUMBER:   AR2000042629

	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. Anita L. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Donald P. Hupman		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 honorable (HD).

APPLICANT STATES:  In effect, that the Army was unjust by giving him a UD; that it was his understanding that he was issued a UD because he was absent without leave (AWOL) for 30 days and he was AWOL for a maximum of two weeks; that he feels this AWOL was a first offense and a very short period of time and it did not warrant such a severe punishment; that the punishment was severe compared to today’s standards; that any prudent judge should feel that his discharge was too severe; that his ability to serve was impaired by marital and family problems, youth and immaturity, personal problems, use of drugs and alcohol, and psychiatric and medical problems; that he received awards and decorations; that his conduct and efficiency ratings/ behavior and proficiency marks were mostly pretty good; that his ability to serve was impaired because he was not working in the field he was trained for; that his discharge was based on many offenses, but they were mostly minor offenses; that his command abused its authority when it decided to discharge him and decided to give him a bad discharge; and, that he has been a good citizen since discharge.

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

On 29 August 1972 he enlisted in the Regular Army for a period of 3 years.  He enlisted under the Buddy Combat Arms Enlistment Option and for the 8th U.S. Army Korea.  He successfully completed basic combat training at Fort Leonard Wood, Missouri, and advanced individual training in military occupational specialty (MOS) 11B (Light Weapons Infantryman) at Fort Polk, Louisiana.  

On 20 December 1972 he departed Fort Polk in casual status en route to Korea.  He was assigned to the 2nd Infantry Division at Camp Casey in MOS 11B.  He was utilized as a light vehicle driver.

The applicant’s record documents that the highest permanent rank he held on active duty was private/E-2 and that he is in receipt of the National Defense Service Medal and the Armed Forces Expeditionary Medal.

On 5 February 1973 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for three specifications of failing to go to his appointed place of duty.  The punishment imposed consisted of reduction to private/E-1 (suspended for 30 days), a forfeiture of $25 (suspended for 30 days), and 14 days restriction.

On 21 April 1973 he accepted NJP for being AWOL from 12-20 April 1973.  The punishment imposed consisted of a forfeiture of $150 per month for 2 months and 45 days extra duty and restriction.  

On 18 May 1973 the applicant departed in an AWOL status.  

On 17 June 1973 the applicant voluntarily returned to his unit for duty.

The record is void of the specific facts and circumstances surrounding the applicant’s military service and the events leading to his separation from service.  The record does contain a properly constructed DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that the applicant was separated on 2 July 1973 under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial with a UD.  He was credited with 9 months and 4 days active service, and 30 days of lost time.  The DD Form 214 does not show the applicant’s lost time due to AWOL during the month of April 1973.

Army Regulation 635-200, then in effect, sets forth the policies and procedures 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. 

On 7 May 1974 the applicant was granted a personal hearing in support of his request for an upgrade by the Army Discharge Review Board.  The applicant did not appear, however, his civilian attorney presented testimony and written evidence (notarized affidavit) on behalf of the applicant. 

In this written affidavit, dated 8 August 1973, the applicant stated that he had been AWOL on “one or two prior occasions for a very short insubstantial period of time.  When I returned from the latter of what I believe to be two AWOLs, I was advised by a member of the Judge Advocate Corp, a captain, that if I wanted to get out of the service, I should just keep up my current course of conduct.  He assured me that that was a positive way to be discharged…I was not well adjusted to the service and felt that I had made a mistake in enlisting and did  desire to in fact be discharged and was advised by this captain and others that I was not going to be released or discharged unless I kept going AWOL.”  

The applicant further stated “I returned from a three-day AWOL and was told by a sergeant that he could not check me in and there was absolutely no point in my returning to my unit, since I was either dropped from the rolls or would not be accepted.  Consequently, I left the company area and was AWOL for 29 days.  When I returned to the company area, I was referred to the Judge Advocate General’s office again and was advised that I could get out of the service if I signed some papers.  I was also advised that most likely I would be given a general discharge and would be able to go home.  I do not believe that I was advised of my right to courts-martial, nor do I necessarily believe that I would have accepted a court-martial, had I known that one was available.  I do believe, however, that if I had been advised that an undesirable discharge was a veritable certainty, that I would have opted to do something else, other than accept such an undesirable result…I signed some papers, however, I do not recall the exact nature or content of those papers except to the extent that I know I admitted being AWOL for 29 days.”

On 27 August 1974 the Army Discharge Review Board denied the applicant’s request for an upgrade of his characterization of service.

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 record is void of facts and circumstances concerning events that led to a discharge from the Army.  The Board noted that the applicant’s record contains a properly constituted DD Form 214 which was authenticated by the applicant.  This document identifies the reason and characterization of the discharge. 

2.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated offenses under the UCMJ.  Absent independent corroborating evidence to the contrary, the Board presumed government regularity in the discharge process 

3.  The Board noted the applicant’s contentions that he received awards and decorations and that his conduct and proficiency marks were mostly pretty good, however, the applicant’s relatively short period of service and two NJPs did not sufficiently mitigate his period of AWOL.  Therefore, the characterization of service was commensurate with his overall service.

4.  The applicant has not submitted any probative evidence in support of his contentions that his ability to serve was impaired because of marital and family problems, personal problems, use of drugs or alcohol, or psychiatric and medical problems.  In his August 1973 affidavit before the Army Discharge Review Board, the applicant stated that he believed he had made a mistake enlisting in the Army, that he was not well adjusted to Army life, and that he was seeking advice on how to obtain a discharge.  He did not support his desire to obtain a discharge with evidence that he was suffering from any personal, marital, family problems, or that he was involved with alcohol or drug use, or that he had any psychiatric or medical problems.  

5.  The applicant has not submitted any evidence to support his contention that his good citizenship since discharge sufficiently mitigates the reason for discharge and characterization of service granted.   

6.  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.

7.  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

__RVOC_  __EMW__  __DPH__  DENY APPLICATION

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

INDEX

CASE ID	AR2000042629	
SUFFIX		
RECON		
DATE BOARDED	20000928	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19730712	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  	144.9309.0000	
 2.  	144.9317.0000	
 3.  	144.9401.0000	
 4.	144.0100.0000	
 5.		
 6.