MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 September 2002 
	DOCKET NUMBER:   AR2002074310

	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. John N. Slone		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. William D. Powers		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 he went absent without leave (AWOL) in August 1969, and got into trouble with civilian authorities and went to jail.  He thought the military had been notified, and he did not learn until much later that he was considered AWOL.  He claims that he was young at the time and did not understand what was happening.  In support of his application, he submits a copy of his separation document (DD Form 214). 

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

On 11 October 1968, the applicant was inducted into the Army.  His records document no acts of valor, significant achievement, or service warranting special recognition, and the highest rank he attained on active duty was private/E-2. 

The applicant completed basic combat and advanced individual training (AIT).  Upon successful completion of his training, he was awarded military occupation specialty 51B (Carpenter).  On 21 April 1969, while attending AIT, the applicant was convicted by a special court-martial of being AWOL from 2 January through 20 March 1969.

The applicant was reassigned to the Republic of Vietnam (RVN) and was instructed to report to the US Army Overseas Replacement Station, Oakland, California, for movement to the RVN on 12 August 1969.  He failed to report for his movement date and was declared AWOL.  On 17 January 1972, he returned to military control at the US Army Personnel Control Facility, Fort Carson, Colorado.  The applicant again went AWOL from 1 February to 19 May 1972.

On 22 May 1972, court-martial charges were preferred against the applicant for the following two periods of AWOL:  12 August 1969 to 17 January 1972; and 1 February to 19 May 1972.  After consulting with legal counsel and being advised of the basis for the contemplated trial by court-martial, the maximum allowable punishment, and the possible effects of an UD, the applicant voluntarily requested to be discharged for the good of the service/in lieu of trial by 
court-martial, under the provisions of chapter 10, Army Regulation 635-200.  

The appropriate authority approved the applicant’s request for discharge, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by court-martial, and directed that he receive an UD.  On 
13 July 1972, the applicant was discharged accordingly.  At the time of his discharge, he had completed a total of 11 months and 17 days of creditable active military service.
On 1 May 1979, the Army Discharge Review Board determined that the applicant’s discharge was proper and equitable, and it denied his request for an upgrade to his discharge.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after court-martial charges have been preferred.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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

1.  The Board notes the applicant’s contention that his being unaware and young were mitigating factors in the AWOL related misconduct that ultimately resulted in his discharge.  However, it finds this claim is insufficiently mitigating to warrant the requested relief. 

2.  The evidence of record shows the applicant was charged with the commission of multiple offenses punishable under the Uniform Code of Military Justice (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.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.

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 applicant’s discharge accurately reflects 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

__JNS__  __DPH___  __WDP__  DENY APPLICATION

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

INDEX

CASE ID	AR2002074310	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/12	
TYPE OF DISCHARGE	 UOTHC	
DATE OF DISCHARGE	19720713	
DISCHARGE AUTHORITY	AR 635-200 Ch 10.  .  .  .  .  	
DISCHARGE REASON	In Lieu of trial by CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.	144.033	
3.		
4.		
5.		
6.