MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 September 2001
	DOCKET NUMBER:   AR2001057443

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn 		Chairperson	
	Mr. John E. Denning		Member	
	Mr. Terry L. Placek		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 discharge under other than honorable conditions (UOTHC) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that he was placed in pretrial confinement, was tried and acquitted, and should have received a GD.

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

On 22 August 1968, he enlisted in the Regular Army for 2 years.  He completed basic training at Fort Benning, Georgia, and while enroute to advanced individual training he departed on his first period of being absent without leave (AWOL).

The applicant’s record shows that during his active duty tenure the highest rank he attained was private/E-2 (PV2).  Further, there are no documented acts of valor, significant achievement, or service warranting special recognition on file in the service record.  

However, the applicant’s record does confirm an extensive disciplinary history that includes his being convicted by a special and a summary court-martial in addition to his acceptance of nonjudicial punishment.  It also verifies he had an extensive history of AWOL related misconduct.  The record also confirms that on 16 July 1969, the applicant was tried by a special court-martial for stealing $40.00 and was acquitted; however, this was not the basis for his discharge. 

On 6 July 1972, the applicant consulted legal counsel after a court-martial charge had been preferred against him for being AWOL from 10 April 1970 to 11 May 1972.  After being advised of the basis for the contemplated trial by court-martial, under circumstances that could lead to a bad conduct or dishonorable discharge, the applicant requested he be discharged for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 
635-200.  Counsel also advised the applicant of the effects of his request for discharge, the possible loss of veterans benefits, and of the rights available to him.  

The specific facts and circumstances in regard to the processing of the applicant’s request for discharge and its approval are unclear.  However, the record does contain a properly constituted separation document (DD Form 214) that was issued to and authenticated by the applicant with his signature on the date of his discharge.  This separation document confirms that on 11 August 1972, he was discharged from the Army under other than honorable conditions.  It also verifies that the authority for separation was chapter 10, Army Regulation 635-200 and the reason for discharge was for the good of the service, in lieu of trial by court-martial.  
The separation document also confirms that on the date of his separation the applicant had completed a total of 1 year, 4 months, and 10 days of creditable active military service and had accrued a total of 940 days of time lost due to AWOL and confinement.  The applicant signed this form in block 32, thereby, verifying the data contained therein. 

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after court-martial charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate for members separating under these provisions.

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 contention that he was placed in pretrial confinement, was tried and acquitted, and should have received a GD lacks merit.  The Board notes that he was acquitted of the charge of stealing $40.00 by a special 
court-martial on 16 July 1969.  However, this incident was unrelated to his discharge processing and is not sufficiently mitigating to warrant an upgrade of his discharge.

2.  The evidence of record clearly shows that after being charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge, the applicant consulted legal counsel and after being advised of the basis for the contemplated trial by court-martial, voluntarily requested discharge under the provisions of chapter 10, Army Regulation 
635-200, for the good of the service, in lieu of trial by court-martial.  

3.  The applicant’s record is unclear in regard to the separation processing subsequent to the applicant submitting his request for discharge.  However, the Board notes that the applicant’s record contains a properly constituted DD Form 214, which was authenticated by the applicant, and identifies the reason and characterization of the discharge.  Therefore, the Board presumed Government regularity in the discharge process. 

4.  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.  It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.

5.  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.

6.  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 __  __JED__  _ _TLP   _  DENY APPLICATION

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

INDEX

CASE ID	AR2001057443	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/09/13	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19720811	
DISCHARGE AUTHORITY	AR635-200.  .  .  .  .  	
DISCHARGE REASON	In Lieu of trial by CM	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	70.00	
2.		
3.		
4.		
5.		
6.