MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           18 July 2000
	DOCKET NUMBER:    AR1999032693

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Elizabeth Buchanon 		Member	
	Ms. Margaret V. Thompson		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, reconsideration of his request for an upgrade of his undesirable discharge (UD).  Since records reflecting the Board’s 1 May 1974 consideration is no longer available, it is impossible to determine if the evidence and arguments now presented are new and different.  Therefore, the case is reviewed de novo.

APPLICANT STATES:  In essence that he was absent without leave (AWOL) due to an automobile accident in which his mother was involved.  He attempted to obtain documents that substantiated this contention, however, these documents did not arrive prior to his being discharged.  He submits medical records dated 7 July and 26 July 1972 that show he was suffering from anxiety.  He submits an injured medical report, treatment medical records, and a sworn statement from his mother in support of his case.  His mother states that she was involved in an automobile accident and suffered trauma to her head, neck, shoulders and arms.  Due to the injuries that she received, she did not go back to work until 11 April 1972.  She had surgery on her nose and she also had ambulatory treatment from 4 May-8 July 1972.  Additionally, she contends that she was hospitalized during 4 days of the 55 days that the applicant was AWOL.  The applicant also submits a neighborhood declaration which shows that he is an honorable man and a distinguished member in his community

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

That on 2 November 1971, he enlisted in the Regular Army for a period of 2 years.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  

His mother’s medical records substantiate his contention that on 14 February 1972, she was involved in an automobile accident.  The medical records also show that she was released from the hospital on 24 February 1972, which was 10 days later.

On 3 April 1972, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to go to his appointed place of duty at the prescribed time on 31 March 1972.  His punishment included forfeiture of pay and 7 days extra duty and restriction.

On 28 April 1972, he departed Fort Jackson, South Carolina, in an ordinary leave status for Puerto Rico enroute to an assignment in Europe.  His ordinary leave ended on 11 May 1972.  On 12 May 1972, he was placed in an AWOL status.  On 6 July 1972, he turned himself into military authorities at Fort Jackson, South Carolina.

On 2 August 1972, the applicant consulted with legal counsel and requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.  He was advised that the offense(s) for which he was charged could lead to a UD.  He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UD.  The available records do not contain a statement submitted in his behalf.  

The available records clearly show that he was charged with being AWOL and that he requested a discharge, for the good of the service.  However, the available records do not contain the charge sheet or the discharge proceedings.

On 18 August 1972, the applicant was separated with a UD for the good of the service-in lieu of court-martial, under the provisions of chapter 10, Army Regulation 635-200.  He had completed 7 months, and 23 days of active military service and he had 55 days of recorded lost time.

On 22 November 1977, in a records review and again on 19 March 1979, in a personal appearance, the Army Discharge Review Board denied the applicant’s requests for an upgrade 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 was authorized, a UD 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.  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.

2.  The available records show that the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  Although the paperwork in connection with the charge is missing, he would have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The evidence available shows that he consulted with defense counsel and signed a statement indicating that he had been informed that he could receive a UD and the ramifications of receiving such a discharge.  He voluntarily requested discharge to avoid trial by court-martial.  In doing so, he admitted guilt to the stipulated offense under the UCMJ.  The Board has presumed regularity and he has provided no information that would indicate the contrary.   

3.  The Board took into consideration the fact that the applicant’s mother was recovering from an automobile accident at the time that he was AWOL.  However, the available evidence does not indicate that she was in a life-threatening situation that required his presence.

4.  Further, the Board determined that the applicant had many legitimate avenues through which to obtain assistance without committing the AWOL offense which led to the separation action under review.

5.  The Board considered the applicant’s entire record of service and was convinced that the reason for discharge and the characterization of service were both correct.

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

_gdp____  __eb____  __mvt___  DENY APPLICATION

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

						

INDEX

CASE ID	AR1999032693	
SUFFIX		
RECON		
DATE BOARDED	20000718	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19720818	
DISCHARGE AUTHORITY	AR635-200, CHAPTER 10  	
DISCHARGE REASON	A71.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7100	
2.		
3.		
4.		
5.		
6.