MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 December 2002                  
	DOCKET NUMBER:   AR2002072451

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. William D. Powers		Member	
	Ms. Barbara J. Ellis		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:  That his discharge be upgraded.

APPLICANT STATES:  In effect, his civilian incarceration for reckless driving is what led to his discharge and feels that the discharge is in error.  He further states that he has been a productive member of his community for the years since his discharge and feels that discharge was not a result of his personal actions but due to his time served for reckless driving.

COUNSEL CONTENDS:  That the applicant has continued to be an asset to his community and avers that the discharge was unduly harsh.

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

The applicant entered active duty on 29 June 1970 and completed basic combat training without incident. 

During advanced individual training (AIT) the applicant was reported absent without leave (AWOL) from 20 September through 6 October 1970 (17 days) and was incarcerated by civilian authorities from 7 October through 10 October 1970.

The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for AWOL.

The applicant was reported AWOL from 10 January through 19 May 1971, 14 June through 21 July 1971, and 2 August 1971 through 11 February 1972, for a total of 362 days.  The applicant was held in military confinement from 17 February through 17 March 1972.

On 17 February 1972, court-martial charges were preferred for three periods of AWOL and the applicant was afforded physical and psychiatric examinations.  These examinations found no physical or mental defects that warranted medical disposition.  He met the medical retention standards of Army Regulation 40-501 and was qualified for separation.

After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulations 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive a discharge under other than honorable conditions which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge, and that there is no automatic upgrading or review of a less than honorable discharge.

The discharge authorities approved the request for discharge under Army Regulation 635-200, chapter 10, directed that the applicant be reduced to the lowest enlisted grade (E-1), and receive an undesirable discharge.  
The applicant was discharged on 24 March 1972.  He had 6 months and 8 days of creditable service and 413 days of lost time due to AWOL and confinement.

On 23 April 1975, the Army Discharge Review Board considered his case and determined that no relief was warranted. 

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.  An under other than honorable conditions discharge is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.   

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, and applicable law and regulations, it is concluded:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  His service is appropriately characterized by his overall record.

2.  There is no documentation to show that his discharge was unduly harsh, in fact the applicant could have faced a significantly harsher discharge had his request for discharge in lieu of court-martial not been accepted.  

3.  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.

4.  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

__LLS___  __WDP _  __BHE __  DENY APPLICATION

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

INDEX

CASE ID	AR2002072451	
SUFFIX		
RECON		
DATE BOARDED	20021217	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.	
2.		
3.		
4.		
5.		
6.