MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           12 June 2003
	DOCKET NUMBER:   AR2003085161

	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. Raymond V. O’Connor		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Eloise C. Prendergast		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 was told by his commander that his discharge would be upgraded if he stayed out of trouble for five years.  He claims that he received his discharge because he needed to be with his family.  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 29 April 1971, the applicant entered active duty and was assigned to Fort Ord, California, to attend basic combat training (BCT).  The record shows that he never advanced beyond the rank of private/E-1 (PV1) while serving on active duty.  His record also documents no acts of valor, significant achievement, or service warranting special recognition.

The applicant’s record does reveal an extensive absent without leave (AWOL) related disciplinary history.  On 18 February 1972, he was convicted by a special court-martial of two specifications of AWOL.  The first from 19 through 23 July 1971, and the second from 26 July 1971 through 10 January 1972.  

On 13 April 1972, the applicant was convicted by a summary court-martial of being AWOL from 20 March through 5 April 1972.  Further, on 19 January 1973, he was convicted by a special court-martial of being AWOL from 11 September through 13 November 1972. 

On 26 March 1973, the applicant again departed AWOL from his unit, and he remained away until returning to military control on 26 July 1973.  On 27 July 1973, he was notified that a court-martial charge was being preferred against him for this period of AWOL.  After consulting with legal counsel and being advised of the basis for the contemplated trial by court-martial, he 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 applicant submitted a statement, in which he commented that he was a family man and he would go AWOL every time his wife needed him, and that if he were returned to duty, he would go AWOL again. 

On 22 August 1973, the appropriate authority approved the applicant’s separation request and directed that he be issued an UD.  On 28 August 1973, the applicant was discharged accordingly.  At the time of his discharge, he had completed a total of 10 months and 7 days of creditable active military service and he had accrued 533 days of lost time due to AWOL and confinement.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statue 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 undesirable discharge.

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 unit commander informed him that his discharge would be upgraded in five years if he stayed out of trouble, but it finds insufficient evidence to support this claim.  

2.  The Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application requesting a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  Department of Defense policy prohibits establishing factors that would require an automatic change to a discharge. 

3.  The evidence of record confirms that the applicant was charged with the commission of an offense 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 offense under the UCMJ.  

4.  The Board was 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 undistinguished 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:

_EP_  __JI__  __RO___	 GRANT

________  ________ ___	 GRANT FORMAL HEARING

________  ________  ___  DENY APPLICATION

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

INDEX

CASE ID	AR2003085161	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	 UD	
DATE OF DISCHARGE	19730828	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	In lieu of trail by CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 713	144.7110	
2.		
3.		
4.		
5.		
6.