MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          9 July 2002
	DOCKET NUMBER:  AR2002071613

	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. Adraince 		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Roger W. Able		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:  Reconsideration of his earlier appeal to correct his  military records by upgrading his undesirable discharge (UD) to an honorable discharge (HD).  

APPLICANT STATES:  In effect, his discharge should be upgraded because he was injured in the service and because he was supposed to get a general, under honorable conditions discharge (GD).  His application for reconsideration was submitted through a Member of Congress, who requested that his case be reviewed and an assessment be provided.  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2000041508) on 
28 September 2000.    

The applicant served on active duty in the Regular Army from 24 July 1973 until 4 November 1975.  At that time, he was separated with an UD after completing a total of 2 years, 1 month, and 6 days of creditable active military service and having accrued 67 days of lost time due to AWOL.

The applicant’s record shows that the only award or decorations the applicant received during his active duty tenure were the National Defense Service Medal and the Sharpshooter Marksmanship Badge (Rifle).  There are no acts of valor, significant achievement, or service warranting special recognition documented in his record.  

However, the applicant’s record does reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of 
Article 15 of the Uniform Code of Military Justice (UCMJ) on 4 April 1975, for two specifications of failure to go to his appointed place of duty.  He was also AWOL from 19 to 21 May 1975; and on 5 August 1975, he departed his unit AWOL and remained away until being apprehended by civil authorities on 9 October 1975. 

The applicant’s medical records confirm that on 22 October 1975, he underwent a separation physical examination and was cleared for separation by competent medical authorities.  There is no indication in this examination that the applicant suffered from a disabling medical condition at that time.  

The separation document (DD Form 214) issued to the applicant on the date of his separation from active duty confirms that he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/
in lieu of trial by court-martial.  On the date of his discharge, the applicant authenticated his DD Form 214 with his signature in Item 29 (Signature of Person Being Separated), thereby, verifying the information contained therein.  

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 contentions that his discharge should be upgraded because he was injured at the time and because he was told that he would receive a GD.  However, it finds insufficient evidence to support these claims.  
 
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 a properly constituted DD Form 214, which identifies the reason and characterization of the discharge.  This document was authenticated by the applicant with his signature on the date of his discharge, in effect, verifying the information contained therein.  Thus, the Board presumes Government regularity in the discharge process.  

3.  Notwithstanding the applicant’s claim that he was told he would receive a GD,  the evidence of record confirms that he was discharged 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 to be advised on the impact of an UD, and subsequently to voluntarily request separation from the Army in lieu of trial by court-martial. 

4.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

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

_ _JHL_ _  __TBF__  __RWA__  DENY APPLICATION

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

INDEX

CASE ID	AR2002071613	
SUFFIX		
RECON	AR2000041508	
DATE BOARDED	2002/07/09	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/11/04	
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.