MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           18 October 2001                 
	DOCKET NUMBER:   AR2001057282

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Barbara J. Ellis 		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.

APPLICANT STATES:  That he believes the manner in which he was discharged under the provision of chapter 10, Army Regulation (AR) 635-200 was unjust.

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

He was inducted into the Army of the United States for a period of 2 years on 9 July 1970.  Following completion of all military training, he was assigned military occupational specialty (MOS) 94B, Cook, and ordered to Europe.

The applicant did not report for overseas transfer and was absent without leave (AWOL) from 11 January 1971 through 1 February 1971.  He was returned to military control at Fort Hood, Texas and, on 2 February 1971, accepted NJP (nonjudicial punishment) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  His punishment consisted of forfeiture of $32.00 pay.

The applicant was assigned to Headquarters and Headquarters Company, 1st Battalion, 13th Cavalry Regiment, 1st Cavalry Division at Fort Hood.  On 29 May 1971, he departed this unit in an AWOL status and remained absent until 7 July 1971 when he was returned to military control at Fort Polk, Louisiana.  He went AWOL from Fort Polk from 19 July 1971 until 15 May 1972.  On 19 May 1972, he was placed in pretrial confinement at the Post Stockade, Fort Polk.

Court-martial charges were preferred against the applicant on 23 May 1972.  On 24 May 1972, after consulting with counsel about his rights, the applicant voluntarily, and in writing, requested discharge under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  The chain of command recommended approval of the applicant’s request for discharge with a UD.

On 6 June 1972, the appropriate authority approved the applicant’s request for discharge and directed issuance of a UD.  Accordingly, on 9 June 1972, the applicant was discharged from the Army after completing 1 year, 1 month, and 5 days of creditable military service and accruing 300 days of lost time.

AR 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 Board noted that after consulting with defense counsel, the applicant voluntarily, and in writing, requested 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.  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.

3.  The Board concluded that the applicant’s administrative discharge under the provisions of chapter 10, AR 635-200 in lieu of trial by court-martial was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

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

__FNE__  ___MHM_  __BJE___  DENY APPLICATION

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

INDEX

CASE ID	AR2001057282	
SUFFIX		
RECON		
DATE BOARDED	20011018	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19720609	
DISCHARGE AUTHORITY	AR 635-200, c10	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.