MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  27 February 2001
	DOCKET NUMBER:  AR2000049548

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Melvin H. Meyer		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 under conditions other than honorable, given in lieu of court-martial, be upgraded.

APPLICANT STATES:  In effect, that he was not counseled according to 
chapter 10-2, Army Regulation 635-200 (Enlisted Personnel Separations), concerning the type of discharge normally given under chapter 10, his rights regarding withdrawing his request for a chapter 10 discharge, loss of veteran’s benefits, and prejudice in civilian life because of the characterization of the discharge.  He does not submit any evidence but does refer to his DD Form 214 (Report of Transfer or Discharge) and evidence used at a reported chapter 
10 hearing.

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

That he enlisted in the Regular Army on 8 May 1972.  While at basic training at Fort Dix, New Jersey, he was punished on 12 July 1972 under Article 15, UCMJ, for being absent from his unit from 1800 hours to 2345 hours without proper authority.  He was punished by forfeiture of $15, and 7 days restriction and extra duty.

While a student at the U. S. Army Medical Training Center at Fort Sam Houston, Texas, he was punished on 21 November 1972 under Article 15, UCMJ, for failure to go to fire guard duty.  He was punished by forfeiture of $30 and 7 days restriction and extra duty.  

On 1 December 1972, the applicant was convicted by a summary court-martial of being AWOL from unit training from on or about 1300 hours, 19 October 1972, to on or about 1830 hours, 20 October 1972.  He was sentenced to forfeiture of $75 and reduction from Private (pay grade E-2) to Private (pay grade E-1).

On 19 December 1972, he was punished under Article 15, UCMJ, for one day AWOL.  He forfeited $144, one month’s pay.

On 11 January 1973, he was punished under Article 15, UCMJ, for failure to go to fire guard duty.  He forfeited $100.

On 28 February 1973, while attending Advanced Individual Training (AIT) at Fort Ord, California, he was recommended for a bar to reenlistment.  The company commander wrote in the recommendation, “This EM has a record of habitual misconduct in this unit and previous units.  He has a summary court-martial conviction and five punishments under Article 15 (only four are in the record),

and his conduct has shown no improvement since assignment to this unit.  …he lacks the willingness to accomplish even the simplest tasks without constant supervision.  This individual has been counseled numerous times on the consequences of further misconduct, … with negative results.”  The applicant elected not to submitted a statement on his own behalf.

On 11 March 1973, the applicant, a Private (pay grade E-1), assaulted another Private (pay grade E-2) by hitting him in the face with a fist.  On 21 March 1973, he used disrespectful language toward a Private First Class.  On 22 March 1973, he used disrespectful language toward a Staff Sergeant (pay grade E-6), pushed the sergeant to the ground, and challenged him to a fight.  The applicant was confined from 22 March through 30 April 1973.

On or about 1 April 1973, the applicant was presented court-martial charges for the above offenses plus two additional offenses; for willfully disobeying a lawful order issued by his commanding officer to get a hair cut and to report to the commander’s office.  On 16 April 1973, he was provided counsel by a Judge Advocate General’s Corp defense counsel.  The applicant requested, in his own handwriting, discharge in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200.  He wrote, “I know I will lost (sp) all of my benefits. I know I am take a Undesirable Discharge.  I wish not to go back to the comp. (compound) or the Army.”  The applicant’s request was approved on 11 May 1973 by the separation authority, a major general.  An undesirable discharge was directed.  The applicant was so discharged on 25 May 1973 with 9 months and 24 days creditable service and 54 days lost time.

The applicant was in AIT at Fort Dix and two different AIT courses at Fort Ord, but did not complete any AIT course.

The Army Discharge Review Board (ADRB) considered the applicant’s request for discharge upgrade on 13 February 1979.  Based on the applicant’s record, the ADRB found his undesirable discharge proper and equitable and denied his request for discharge upgrade.

Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10 (Discharge for the Good of the Service), states that a member who has committed an offense or offenses for which the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) authorize punishment which includes a punitive discharge (bad conduct or dishonorable), 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.  An undesirable discharge under other than honorable conditions is normally considered appropriate.  

According to the MCM, the maximum punishment for AWOL in excess of 30 days is a bad conduct discharge or a dishonorable discharge, confinement for one year, and total forfeiture of all pay and allowances.

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 provides evidence of his history of frequent misconduct including four Articles 15, one summary court-martial, and court- martial charges for two counts of willful disobedience of a direct order from his company commander, pushing a SSG to the ground, challenging a SSG to a fight, using disrespectful language toward a SSG and a PFC, and hitting a Private E-2 in the face with a fist.

2.  The record shows that the applicant requested discharge in lieu of court-martial and that he knew he would get an undesirable discharge, lose his benefits, and that he did not want to be in the Army.  His counsel witnessed his written statement proving that the applicant did receive adequate counsel.

3.  Considering the applicant’s record, his request for discharge in lieu of court-martial, and the provisions of Chapter 10, AR 635-200, there is no evidence of error or injustice in his undesirable discharge under conditions other than honorable.

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

__js___  ___ra___  __mm______  DENY APPLICATION

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

INDEX

CASE ID	AR2000049548	
SUFFIX		
RECON		
DATE BOARDED	20010227	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19730525	
DISCHARGE AUTHORITY	AR 635-200, chapter 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  110	Discharge Document	
2.		
3.		
4.		
5.		
6.