MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 March 2001                   
	DOCKET NUMBER:   AR2000045721

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher 		Chairperson	
	Mr. Richard T. Dunbar 		Member	
	Mr. Thomas E. O’Shaughnessy 		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 his service record was excellent until his daughter’s death and his wife divorcing him.  He further states that the death of his daughter and divorce from his wife are mitigating factors to his acts of misconduct.  In support of his request, the applicant submitted a letter in his own behalf, a copy of DD Form 214, Report of Separation from Active Duty, and DA Form 20, Enlisted Qualification Record.

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

On 22 April 1971, the applicant enlisted in the Regular Army for a period of 3 years.  Following completion of all required training, the applicant was meritoriously promoted to specialist/E-4, awarded military occupational specialty (MOS) 67N (UH-1 Helicopter Repairman), and was assigned to Fort Hood, Texas.

On 17 August 1972, the applicant reenlisted for 5 years for the Continental United States Station of Choice (Fort Ord, California) Enlistment Option.  

On 16 April 1973, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL).  His punishment consisted of reduction in grade to private first class/E-3, forfeiture of $100.00 pay per month for 2 months (suspended), and 25 days extra duty.

On 14 May 1973, the applicant departed his unit in an AWOL status and on 14 June 1973 he was dropped from the rolls as a deserter.

On 13 September 1974, the applicant was apprehended by agents of the Federal Bureau of Investigation and returned to military control.

The specific facts concerning the applicant’s separation from the Army are not in the record; however, his, DD Form 214, Report of Separation From Active Duty, shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.

On 4 November 1974, the applicant was reduced in rank from private first class/E-3 to private/E-1.

On 12 November 1974, the applicant was discharged from the Army with a UD after completing 2 years, 2 months, and 12 days of active military service and accruing 489 days of 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.  However, at the time of the applicant's separation the regulation provided for the issuance of a UD.

There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 

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 empathizes with his family/personal problems.  However, after careful consideration of all faithful and honorable service as well as infractions of discipline, the extent thereof, and the seriousness of the offenses, the Board determined that the applicant’s family/personal problems were not sufficiently mitigating to warrant an upgrade of his discharge.  The Board concluded that the applicant had many legitimate avenues through which to obtain assistance or relief without committing the misconduct which led to his separation.

2.  The evidence of record shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  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 admitted guilt to the stipulated offenses under the UCMJ.

3.  In the absence of information to the contrary, 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.  It also noted that the characterization of service for this type of discharge is normally under other than 
honorable conditions and that the applicant would have been aware of that prior to requesting discharge.

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

__emw__  __rtd ____  __teo ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000045721	
SUFFIX		
RECON		
DATE BOARDED	200115	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19741112	
DISCHARGE AUTHORITY	AR 635-200, c10	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.	
2.		
3.		
4.		
5.		
6.