MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 November 2001
	DOCKET NUMBER:   AR2001061001

	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:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Mr. John T. Meixell		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 either an honorable discharge (HD) or a general, under honorable conditions discharge (GD).  

APPLICANT STATES:  In effect, that he entered the Army out of high school and had never been around drinking or anything like that.  He claims that his main problem was that he could not adjust to military life and fell in with the wrong crowd while assigned to Puerto Rico.  He also indicates that he had received an HD upon reenlisting at Fort Hood, Texas, and has not been in any trouble since leaving the Army.  In addition, he comments that he at least tried to serve his country at a time many others would not.  He indicates that he hates the fact that he has a bad mark on his name because he could not adjust to military life and that he should not have to continue to suffer the stigma of his bad discharge. 

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

He initially entered the Army on 10 April 1967 and served for 11 months and 
8 days until 17 March 1968, when he was honorably released from active duty (REFRAD) for the purpose of immediate reenlistment.  On 18 March 1968, while assigned to Fort, Hood, Texas, he reenlisted for 4 years.  

The applicant’s Enlisted Qualification Record (DA Form 20) shows that the highest rank he attained while serving on active duty was specialist four/E-4 (SP4).  He was trained and served in military occupational specialties (MOSs) 16C (Hercules Missile Crewman) and 71G (Medical Records Specialist).  The applicant’s record confirms that the only award he earned during his active duty tenure was the National Defense Service Medal and it documents no acts of valor, significant achievement, or service warranting special recognition.

However, the applicant’s record does reveal an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on the following three separate occasions for the offenses indicated:  20 September 1967, absent without leave (AWOL) from 15 to 16 September 1967; 22 December 1967, illegal consumption of alcoholic beverages; and 8 May 1969, took and destroyed a coin operated machine which was the property of the Navy Exchange and making a false official statement.  

In addition, the applicant was tried and convicted by a summary court-martial of wrongfully appropriating US currency from 5 other solders.  The resultant sentence included confinement at hard labor for 30 days and a forfeiture of $68.00.  Finally, the disciplinary record shows that on 1 July 1968, the applicant departed his unit AWOL and remained away for 9 days.

On 23 May 1969, court-martial charges were preferred against him for the following offenses:  offering violence against a superior commissioned officer; striking a superior non-commissioned officer (NCO) in the execution of his duties; two specifications of willfully disobeying the lawful order of a superior NCO; two specifications of being disrespectful in language and deportment toward a superior NCO; drunk and disorderly conduct; and wrongfully communicating a threat to a superior NCO.  

On 4 June 1969, after consulting with legal counsel and being advised of the basis for the contemplated trial by court-martial for an offense or offenses punishable by a bad conduct discharge, the rights available to him, and the effects of an UD, the applicant voluntarily elected to request a discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by court-martial.  

On 14 August 1969, the separation authority approved the applicant’s discharge request and directed he be discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by court-martial; and that he be reduced to the lowest enlisted grade.  On 20 August 1969, the applicant was discharged accordingly.  

The separation document (DD Form 214), issued to and authenticated by the applicant with his signature on the date of his separation, confirms that at the time of his discharge he had completed a total of 2 years, 1 month, and 10 days of creditable active military service and that he had accrued a total of 100 days of time lost due to AWOL and military conferment.  

There is no indication in the record that the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within its 15 statute 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 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.  The Board notes the applicant’s contention that there were mitigating factors for the misconduct that resulted in his discharge.  However, the Board finds these factors are not sufficiently mitigating to warrant the requested relief. 

2.  The evidence of record shows that the applicant, after consulting with defense counsel, voluntarily requested an administrative discharge, in lieu or trial by 
court-martial, in order to avoid prosecution.  In doing so, he admitted guilt to the stipulated offenses under the Uniform Code of Military Justice (UCMJ) and he acknowledged that he understood the effects of an UD.  

3.  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 and it finds that the UD he received accurately characterizes his overall record of service.

4.  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.

5.  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

__AAO__   _ _LE __  __JTM___  DENY APPLICATION

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

INDEX

CASE ID	AR2001061001	
SUFFIX		
RECON		
DATE BOARDED	2001/11/27	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1969/08/20	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	In Lieu of CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.