MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            30 May 2002                  
	DOCKET NUMBER:   AR2002070122

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Paula Mokulis		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.  

APPLICANT STATES:  In effect, that he served almost his complete enlistment.  

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

He enlisted in the Regular Army for 3 years and entered active duty on 24 July 1973.  He successfully completed basic training at Fort Jackson, South Carolina and advanced individual training (AIT) at Fort Polk, Louisiana.  Upon completion of AIT, he was awarded military occupational specialty 11B (Infantryman) and assigned to Korea for his first permanent duty station.  

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms that the highest rank he attained while serving on active duty was specialist four/E-4 (SP4/E-4); that he completed an overseas tour in Korea in December 1975; and that during his active duty tenure he earned the National Defense Service Medal and the Armed Forces Expeditionary Medal (Korea).  In January 1976, the applicant arrived at Fort Carson, Colorado, his last duty assignment.  

The applicant’s service record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal an extensive absent without leave (AWOL) related disciplinary history.  This includes his accruing a total of 114 days of time lost due to AWOL during his active duty tenure.  The record confirms that he was AWOL for 2 days from 
13 through 14 May 1974, for which he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  He was also AWOL for 27 days, from 12 May through 7 June 1976; and for 85 days, from 10 June through 2 September 1976.  

A Disposition Form (DA Form 2496), dated 5 October 1976, prepared by the Staff Judge Advocate(SJA), Fort Carson, confirms that a court-martial charge was preferred against the applicant for the following two AWOL offenses:  
12 May to 7 June 1976 (27 days); and 10 June to 2 September 1976 (85 days).  It also verifies that the applicant voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  The SJA recommended to the separation authority that the applicant’s discharge request be approved and that he receive an UD.  

On 5 October 1976, the separation authority approved the applicant’s request for discharge in lieu of trial by court-martial, and directed that the applicant receive an UD and be reduced to the lowest enlisted grade.  On 26 October 1976, the applicant was discharged accordingly.  

The separation document (DD Form 214) issued to applicant on the date of his separation confirms that he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by 
court-martial.  At the time of his discharge, he had completed a total of 2 years, 
11 months, and 11 days of creditable active military service, and accrued 
114 days of time lost due to AWOL.  

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 year 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 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 his discharge should be upgraded because he almost completed his enlistment.  However, it finds this factor is not sufficiently mitigating to warrant the requested relief. 

2.  The applicant’s record is void of the specific facts and circumstances surrounding his discharge processing.  However, the Board notes that the record does contain documents including a properly constituted DD Form 214, which identifies the reason and characterization of the discharge, and the Board presumes Government regularity in the discharge process.  

3.  The evidence of record confirms that the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense under the UCMJ.  

4.  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 finds that the applicant’s discharge accurately reflects the overall quality of his service. 

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

_RVO___  ___JPI__  __PM____  DENY APPLICATION

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

INDEX

CASE ID	AR2002070122	
SUFFIX		
RECON		
DATE BOARDED	2002/05/30	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1976/10/26	
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.