MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           27 March 2001
	DOCKET NUMBER:  AR2000047443

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Mr. Allen L. Raub		Member	
	Ms. Gail J. Wire 		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 a fully honorable discharge. 

APPLICANT STATES:  He makes no contentions.

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

On 24 January 1973, he enlisted in the Regular Army for 4 years and a USA Cash Bonus Enlistment Option, 2nd Armored Division.  He was assigned to Fort Jackson, South Carolina for basic training and for advanced individual training (AIT).  

On 9 April 1973, while attending AIT, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent from his unit on 9 April 1973.  His punishment included reduction from pay grade E-2 to pay grade E-1, forfeiture of $50.00 pay and 7 days restriction.

He completed AIT and was awarded military occupational specialty (MOS) 
11B (Light Weapons Infantryman).  On 25 May 1973, he was assigned to Fort Hood, Texas. 

On 28 May 1974, he accepted NJP for being absent from his unit on 21 May 1973.  His punishment included 7 days extra duty and restriction.

On 23 October 1974, he accepted NJP for failing to go to his appointed place of duty at the time prescribed on 3 October 1974.  His punishment included reduction from pay grade E-4 to pay grade E-3 and forfeiture of $93.00 pay.

On an unknown date in November or December 1974, the applicant signed out of his unit at Fort Hood enroute to Korea.  On 17 December 1974, he was placed in an absent without leave (AWOL) status.  On 3 February 1975, he returned to military control at the Personnel Control Facility (PCF), Fort Bragg, North Carolina.  There is no evidence that he was ever punished for this 48-day AWOL offense.

On 13 June 1975, while at the PCF, Fort Bragg, a special court-martial convicted him of being disrespectful in language towards a superior noncommissioned officer on 20 March 1975 and of failing to go to his appointed place of duty at the time prescribed on 22 April and 12 May 1975.  His sentence included forfeiture of $100.00 pay.

On 18 July 1975, he was assigned to Fort Campbell, Kentucky for duty in MOS 11B.  On 1 August 1975, he went AWOL.  On 3 September 1975, he surrendered to military authorities at Fort Dix, New Jersey.  Military authorities tried to issue him a DD Form 460 (Provisional Pass) to return to his unit at Fort Campbell.  He refused to sign the DD Form 460, therefore, he was placed in the PCF at Fort Dix for refusing a lawful order.  

His records do not contain all the facts and circumstances surrounding the discharge process.  However, the Army Discharge Review Board (ADRB), Case Report and Directive, dated 26 January 1979 shows that 15 days after he surrendered to military authorities at Fort Dix, he requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200. He waived all rights and he did not submit a statement in his own behalf.  On 17 September 1975, he was placed on excess leave pending discharge. 

His records contain a properly constituted DD Form 214 which shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial with a UD on 12 November 1975.  It also shows that he completed 2 years, 8 months and 17 days of active military service and he had 34 days lost time from 1 August-3 September 1975.  His DD Form 214 does not show the 48 days lost time between 17 December 1974-3 February 1975.

On 26 January 1979, the ADRB denied the applicant’s request for an upgrade of his discharge.

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.

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.  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.

2.  The available records show that the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  Some of the facts and circumstances surrounding the discharge process are missing.  However, his records show the commission of at least one offense at Fort Dix which was punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  He would have then been required to consult with defense counsel and would have been required to sign a statement indicating that he had been informed that he could receive a UD and the ramifications of receiving such a discharge.  He would have voluntarily requested discharge to avoid trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ.  The Board presumes regularity in the discharge process.  He has provided no information that would indicate the contrary.   

3.  His conduct was inconsistent with the Army’s standards for acceptable personal conduct and his overall quality of service does not warrant an upgrade of his discharge. 

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

__rwa___  __alr____  __gjw____  DENY APPLICATION

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

					

INDEX

CASE ID	AR2000047443	
SUFFIX		
RECON		
DATE BOARDED	20010327	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19751112	
DISCHARGE AUTHORITY	AR 635-200, CH10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.7100	
2.		
3.		
4.		
5.		
6.