MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           7 May 2002
	DOCKET NUMBER:   AR2002068729

	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. Samuel A. Crumpler		Chairperson	
	Mr. Kenneth W. Lapin		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 a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that his separation from the Army was based on one isolated incident.  He states that his company commander did not want him in his company, which resulted in his going absent without leave (AWOL) and receiving nonjudicial punishment (NJP).  

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

On 14 September 1972, he enlisted in the Regular Army for 3 years.  He successfully completed training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition and confirms that the highest rank he attained while on active duty was private /E-2.  However, it does show an extensive disciplinary history that includes his acceptance of NJP on the following three occasions for the offenses indicated:  5 March 1973, for being AWOL on 2 March 1973; 17 April 1973, for being AWOL from 14 April 1973 to 
15 April 1973; and 1 May 1973, for being AWOL from 27 to 30 April 1973, disobeying a lawful command from a commissioned officer, and for wrongly possessing one ounce or more of marijuana. 

The applicant’s discharge packet containing the specific facts and circumstances surrounding his discharge processing is not in the record.  However, there is a properly constituted separation document (DD Form 214) on file that contains the authority and reason for discharge.  This document was authenticated by the applicant with his signature and confirms that on 30 July 1973, he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  At the time of his discharge, he had completed a total of only 10 months and 17 days of creditable active military service. 

There is no evidence that the applicant applied to the Army Discharge Review Board for an 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 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 applicant’s record is void of facts and circumstances concerning events that led to a discharge from the Army.  The Board notes that his record contains a properly constituted DD Form 214, which was authenticated by the applicant with his signature, and it presumes government regularity in the discharge process.  

2.  The separation document confirms that the applicant was discharged in lieu of trial by court-martial.  Procedurally, this would have required him to consult with legal counsel after being charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  In addition, he would have had to voluntarily request separation after admitting guilt to the stipulated offense under the UCMJ.

3.   Lacking independent evidence 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 finds the applicant’s good service during the initial portion of the enlistment was not sufficiently meritorious to warrant an upgrade of his discharge, and it concludes that the characterization of his service is commensurate with 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

    SAC          KWL          JTM       DENY APPLICATION

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

INDEX

CASE ID	AR2002068279	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/05/07	
TYPE OF DISCHARGE	(UOTHC,)	
DATE OF DISCHARGE	19730730	
DISCHARGE AUTHORITY	AR 635-200.  .  .  .  .  	
DISCHARGE REASON	In Lieu of CM	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.