MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            10 April 2001 
	DOCKET NUMBER:   AR2000050829

	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:

	Ms. Sherri V. Ward		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. George D. Paxson		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 to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that he was never afforded the right to consult with counsel, the right to a hearing, and was never notified that he was being discharged.  He claims that at the time he went absent without leave (AWOL) he had personal problems at home and all his requests for leave had been denied.  He indicates that had he been given due process the convening authority would have understood his situation and he would not have been forced off the base and out of the Army.  The applicant provides further argument in the enclosed expanded statement.

COUNSEL CONTENDS:  In effect, that the applicant’s submission along with the official military records amply advance his contentions and substantially reflect the probative facts needed for equitable review.  Accordingly, counsel rests on the evidence of record.  

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

On 6 June 1973, he enlisted in the Regular Army for three years.  He successfully completed basic training and advanced individual training (AIT) at Fort Dix, New Jersey.  Upon completion of AIT he was awarded military occupational specialty 64C (Heavy Vehicle Driver) and assigned to Fort Bragg, North Carolina for his first permanent duty station. 

The applicant’s record reveals an extensive disciplinary history, which includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on three separate occasions.  

On 18 April 1974, the applicant accepted NJP for absenting himself from his place of duty and on 8 May 1974, he accepted NJP for being AWOL for three days.  His punishment for this offense included a reduction to the grade of private/E-2.  

On 11 June 1974, he again accepted NJP, this time for two specifications of AWOL for 1 and 5 days respectively.  His punishment for these offenses was a reduction to private/E-1 and 30 days of correctional custody.  

On 4 October 1974, the applicant departed his unit on the period of AWOL which ultimately led to his discharge.  He was dropped from the rolls of his organization on 3 November 1974 and remained AWOL until surrendering to military authorities at Fort Bragg on 7 March 1975.  At this time he was assigned to the Personnel Control Facility (PCF), Fort Bragg, as a duty soldier pending his discharge.  

A complete separation packet documenting the applicant’s discharge processing is not on file in the record.  However, the file does include several documents that indicate the applicant was processed for discharge, under the provisions of chapter 10, Army Regulation 635-200,  in lieu of trial by court-martial, based on his 154-day AWOL offense.  

On 13 March 1975, the applicant completed a Standard Form (SF) 93 (Report of Medical History).  The entry in block 5 (purpose of examination) of this document was Army Regulation 635-200, chapter 10.  

There is also an SF Form 88 (Report of Medical Examination) on file, dated 
13 March 1975, that confirms the applicant underwent a complete medical examination and was medically cleared for discharge under the provisions of chapter 10, Army Regulation 635-200 by competent medical authority on that date. 

On 20 March 1975, the applicant signed a form, in which, he declined to receive a separate document explaining the narrative reason for his separation from the United States Army, a narrative description of the authority for his separation, and the reenlistment code.  

On 25 March 1975, the applicant completed and signed a request for excess leave.  This document verifies that the applicant voluntarily requested that he be placed on excess leave pending the approval of his discharge under the provisions of chapter 10, Army Regulation 635-200. 

The Department of Defense (DD) Form 214 (Report of Separation from Active Duty) on file confirms that on 23 May 1975, the applicant received an UD.  It also verifies that at that time he had completed a total of 1 year, 5 months, and 4 days of active military service and had accrued a total of 180 days of time lost due to AWOL.  

There is no evidence to show that the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within the 15 year statue of limitations. 

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 an undesirable discharge.

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 that he was denied due process, the right to counsel, the right to a hearing, and that he was unaware that he was receiving a bad discharge.  However, after carefully evaluating the evidence of record and the independent evidence submitted by the applicant, the Board finds these claims lack merit. 

2.  While the applicant’s record does not contain a complete separation packet documenting his discharge processing, it does include several documents, signed by the applicant, which suggest that he was well aware that he was being processed for discharge under the provisions of chapter 10, Army Regulation 635-200.  

3.  In addition, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which verifies that the applicant received an UD under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial and the Board presumes government regularity in the discharge process. 

4.  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, he was required to consult with defense counsel and voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he had to admit guilt to the stipulated offenses under the UCMJ.  

5.  In the absence of information to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the Board concludes that the character of the applicant’s discharge is commensurate with his overall record of service. 

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 and counsel have 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

__ja ____  ___sw___  ___gp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000050829	
SUFFIX		
RECON		
DATE BOARDED	2001/04/10	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/05/23	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	In Lieu of Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.