MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 March 2000
	DOCKET NUMBER:   AR1999031633

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. James P. Steuve		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 (UOTHC) discharge be upgraded. 

APPLICANT STATES:  In effect, that he would like his discharge upgraded in order to obtain benefits.  He claims that at the time of his infractions he was young and headstrong.  He indicates that since that time he has raised a family and now is raising his grandchildren.  He has long since learned his lesson and needs now to provide for another generation.

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

On 5 February 1965, he enlisted in the Regular Army for 3 years at the age of 
17.  He successfully completed basic training and advanced individual training (AIT) at Fort Polk, Louisiana.  Upon completion of AIT he was awarded military occupational specialty (MOS) 94B (Cook).  He graduated from the basic airborne course at Fort Benning, Georgia and was awarded the Parachutist Badge and the special qualification identifier of P (Parachutist) was added to his MOS.

He was assigned to overseas combat duty in Vietnam where he arrived for duty in August 1965.  On 21 October 1965, he attained the rank of private first class/E-3, which was the highest rank he held on active duty; and during his service in Vietnam he was awarded the Vietnam Service Medal, the Vietnam Campaign Medal, and the Vietnam Gallantry Cross with Palm.  There is no record of his receiving any individual awards for valor, significant achievement, or service warranting special recognition.  

His disciplinary history was extensive and included his conviction by special court-martial on three separate occasions and his acceptance of nonjudicial punishment (NJP), under the provisions  of Article 15 of the UCMJ, on two separate occasions.  In addition, the record indicates that during his tenure in service the applicant accrued 3971 days of time lost due to AWOL and confinement.  

On 3 June 1965, the applicant was convicted by special court-martial of wrongfully appropriating a radio, the property of another soldier.  His sentence consisted of a forfeiture of $52.00 and confinement at hard labor for 1 month.  The confinement portion of the sentence was suspended.

On 28 April 1966, the applicant accepted NJP for wrongfully using reproachful language towards a superior noncommissioned officer (NCO).  His punishment for this offense included a reduction in rank to private/E-2, a forfeiture of $10.00, and 7 days of extra duty.  

On 29 May 1966, the applicant was again promoted to the rank of private first class/E-3.

On 10 May 1967, he accepted NJP for a 4 day period of AWOL from 21 to 
25 April 1967.  His punishment included a reduction in rank to private/E-2; a forfeiture of $70.00, and 30 days of restriction and extra duty.  

On 3 August 1967, the applicant was convicted by special court-martial of a 
35 day period of AWOL from 6 June to 11 July 1967.  His sentence for this offense included confinement at hard labor for 6 months (confinement period in excess of 30 days was suspended), forfeiture of $86.00 per month for 6 months, and a reduction in rank to private/E-1.  

On 26 October 1967, the applicant was convicted by a special court-martial for being AWOL from 1 to 14 September 1967, and for escaping from custody on 
14 September 1967.  The resultant sentence included a forfeiture of $86.00 per month for 6 months and confinement at hard labor for 6 months, the period of confinement in excess of 30 days was suspended.  

The applicant’s DA Form 2-1 (Qualification Record) shows the following additional periods of time lost:  AWOL (7 days) 14 to 20 September 1967; Civil Confinement (4 days) 21 to 24 September 1967; Imprisonment (63 days) 
25 September to 26 November 1967; and AWOL/Desertion (3845 days) 
15 January 1968 to 25 July 1978.

The record does not contain a separation packet containing the specific facts and circumstances surrounding the events which led to the applicant’s discharge.  There is, however, a properly constituted DD Form 214 (Report of Separation From Active Duty) on file, which documents that the applicant was discharged, under the provisions of Chapter 10, Army Regulation 635-200, by reason of the good of the service, in lieu of trial by court-martial.  

The DD Form 214 also shows that the applicant was discharged on 25 August 1978, in the rank of private/E-1 with an UOTHC characterization of service.  At the time of his discharge he had completing 2 years and 8 months of creditable  active military service, and had accrued 3971 days of time lost due to AWOL and confinement.  

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.  A discharge under other than honorable conditions is normally considered appropriate for soldiers separating under these provisions.

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 applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was almost 21 years of age when he last went AWOL and was over 30 years of age when he was finally discharged. 

2.  While the specific facts and circumstances concerning the events that led to a discharge from the Army are not on file, the Board noted that the applicant’s record contains a properly constituted DD Form 214 (Report of Separation From Active Duty).  This document identifies the reason and characterization of the discharge and the Board presumed Government regularity in the discharge process.  

3.  The Board notes the applicant’s desire to receive benefits, however, this does not provide a basis for relief.  The evidence of record shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In the absence of information to the contrary, 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. 

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 the aforementioned 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

__mdm __  ___jps __  ___rgh __  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031633	
SUFFIX		
RECON		
DATE BOARDED	2000/03/29	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1978/08/25	
DISCHARGE AUTHORITY	AR 635-200, C10 	
DISCHARGE REASON	Good of the Service-In Lieu of Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.