MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            30 July 2002
	DOCKET NUMBER:    AR2002073397

	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	
	Ms. Karen A. Heinz		Member	
	Mr. Thomas Lanyi		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. 

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

On 14 November 1972, the applicant enlisted in the Regular Army for 4 years and entered active duty.  He successfully completed basic combat at Fort Ord, California, and advanced individual training (AIT) at Fort Bliss, Texas.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 
11D (Armor Reconnaissance Specialist), and he remained at Fort Bliss for his first permanent duty assignment. 

The applicant’s record confirms that the highest rank he held while serving on active duty was private/E-2.  It documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does contain an extensive absent without leave (AWOL) related disciplinary history.  This includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).

On 26 October 1973, the applicant accepted NJP for being AWOL for 18 days between 1 and 19 October 1973.  His punishment for this offense included a reduction to private/E-1, a forfeiture of $163.00 of pay per month for two months, all in excess of $100.00 pay per month for one month suspended, and 45 days of extra duty.  On 14 February 1974, the suspended portion of this punishment was vacated. 

On 4 March 1974, the applicant departed AWOL from his unit at Fort Bliss, Texas. He remained away for 179 days, until returning to military control at Fort Hood, Texas, on 30 August 1974.  On 4 September 1974, a court-martial charge sheet (DD Form 458) was prepared that preferred a court-martial charge against the applicant for this period of AWOL.  

On 5 September 1974, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ.  He was also advised of the possible effects of an UD, and of the procedures and rights available to him.  Once counseled, he voluntarily requested discharge, for the good of the service/in lieu of trial by court-martial.  

In his request for discharge, the applicant acknowledged his guilt of the charge against him.  He also stated that under no circumstances did he desire further rehabilitation and that he had no desire to perform further military service.  He also acknowledged his understanding that he would be deprived of many or all Army benefits, that he would be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

On 13 September 1974, the appropriate authority approved the applicant’s request for discharge and directed that he receive an UD.  On 16 April 1970, he was discharged accordingly.  The separation document (DD Form 214) issued to and authenticated by the 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 separation, he had completed a total of 1 year, 3 month, and 23 days of creditable active military service, and he had accrued a total of 197 days of time lost due to AWOL.

There is no evidence to show that the applicant applied to the Army Discharge Review Board to request 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 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 request that his discharge be upgraded to a GD.  However, it finds an insufficient propriety or equity basis to support this requested relief. 

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The Board notes that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  

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 that the character of his discharge accurately reflects his overall record of service.  Therefore, the Board concludes that the requested relief is not warranted. 

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__  __KAH___  ___TL___  DENY APPLICATION

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

INDEX

CASE ID	AR2002073397	
SUFFIX		
RECON		
DATE BOARDED	2002/07/30	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/09/19	
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.