MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           15 February 2000                  
	DOCKET NUMBER:   AR1999029779

	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.

	Ms. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Fred Eichorn		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger 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:  In effect, that his under other than honorable conditions (UOHC) discharge be upgraded to honorable with all the benefits of an honorable discharge.

APPLICANT STATES:  In effect, that he served 3 years and 6 days and is entitled to an honorable discharge based upon that service.

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

After a break in service, on 26 August 1971 the applicant reenlisted in the Regular Army for a period of 3 years.  At the time of reenlistment the applicant had attained the rank of sergeant/E-5 and had completed 3 years and 6 days of prior active duty service.  He reenlisted at Fort Ord, California for the Regular Army Enlistment Option and was assigned to Fort Carson, Colorado.

On 30 January 1972 the applicant failed to go to his appointed place of duty.  On 3 February 1972 the applicant departed his unit in an AWOL status from Fort Carson and remained absent until 29 February 1972.  On 2 March 1972 the applicant accepted nonjudicial punishment under the provisions of Article 15, UCMJ for the aforementioned periods of AWOL.  His punishment consisted of a reduction in grade from sergeant/E-5 to specialist/E-4 and a forfeiture of $200.00 per month for 2 months (1 month suspended).

On 24 March 1972 the applicant again departed his unit in an AWOL status from Fort Carson, and did remain so absent until on or about 13 January 1973.  On 19 January 1973 the applicant was charged with the aforementioned period of AWOL.

On 24 January 1973 the applicant, after consulting with counsel, voluntarily requested discharge for the good of the service in lieu of trial by court martial, under the provisions of chapter 10, AR 635-200.  This request was made after counsel advised the applicant of the contemplated trial by court-martial, the maximum punishment, and the possible effects of a UOHC discharge.  The applicant also attested to the fact that he fully understood that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veteran Affairs, and that he may be deprived of many veteran benefits under state law.

On 8 February 1973 the appropriate authority approved the applicant’s request for discharge and directed issuance of a UOHC discharge and a reduction in grade to the rank of private/E-1.  Accordingly, the applicant was discharged after completing 7 months and 27 days of active military service and accruing 320 days of lost time.

On 12 July 1999 the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  However, the statutory requirement under the ADRB appeal option prohibits the processing of applications past 15 years from the date of discharge or release from active duty.  On 20 July 1999 the applicant was referred to the Army Board for Corrections of Military Records (ABCMR) to request an appeal of 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 charges have been preferred and must include the individual's admission of guilt.  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, it is concluded:

1.  The Board noted the applicant’s contention that his discharge should be upgraded to honorable because of his 3 years and 6 months of prior honorable service; however, after carefully considering the applicant’s entire record of service the Board found that his prior honorable service did not mitigate his misconduct.

2.  Trial by court-martial was warranted by the gravity of the offense charged.  Discharge was effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was separated.

3.  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.  There is no indication that the request was made under coercion or duress.

4.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and VA benefits.

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 the aforementioned 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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___fe___  ___kak___  ___ra___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029779	
SUFFIX		
RECON		
DATE BOARDED	200002	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19730308	
DISCHARGE AUTHORITY	AR 635-200, chapter 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.9219		
2.		
3.		
4.		
5.		
6.