MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 April l999                   
	DOCKET NUMBER:   AR1999021743

	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. Loren G. Harrell		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Christopher J. Prosser		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, upgrade of his undesirable discharge (UD).  

APPLICANT STATES:  In essence, that he does not feel he was fully represented by counsel at the time of his discharge.  This discharge has been bothering him for many years.  

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

He was inducted for 2 years on 14 July 1969, at age 19.  He was a high school graduate.  His Armed Forces Qualification Test (AFQT) was 15, Category IV.  His records also show that he was considered a Project 100,000 soldier (a test bed of 100,000 members of the Armed Forces inducted and enlisted in the late 1960/early 1970’s time-frame, who were identified by the Department of Defense to be monitored due to low AFQT scores.  However, no special benefits or entitlements were authorized these members of the Armed Forces).

He was trained in military occupational specialty (MOS) 13A (Cannoneer), completed parachutist training and was assigned to Fort Bragg, North Carolina, in mid-December 1969.  The highest rank he achieved was private first class.

The applicant was absent without leave from 6 July-19 October 1970.  He received nonjudicial punishment (NJP) under the provisions of Article l5, Uniform Code of Military Justice, on 25 October 1970.  His punishment included reduction to pay grade E-1, forfeiture of $66.00 pay per month for 2 months, 45 days extra duty and 60 days restriction to his unit area.  He did not appeal the punishment.  

He was AWOL again from 16-25 February 1971.  He received a summary 
court-martial on 5 March 1971 for this offense.  His punishment included confinement at hard labor for 30 days and the forfeiture of $95.00 pay for 
1 month.  There is no indication in his records that he ever served the period of confinement.

The applicant was AWOL from 26 April-4 July 1971.  On 6 July 1971, court-martial charges were preferred against him for the AWOL period.

On 12 July 1971, he underwent a medical examination and a psychiatric evaluation in connection the proposed separation action.  He was found medically fit for separation and met psychiatric retention standards under the provisions of chapter 3, Army Regulation 40-501.  He was mentally responsible, able to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in board proceedings.  

On 10 August 1971, the applicant consulted with legal counsel, a military lawyer (Judge Advocate General Corps officer), and requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In this request he stated that he understood that he would receive a discharge under other than honorable conditions, and would receive a UD, that he would be ineligible for many or all benefits administered by the Veterans Administration and other benefits administered under State and Federal law.  He did not submit a statement in his own behalf.

On 11 August 1971, his company commander forwarded the recommendation for discharge.  However, before the action reached the separation authority, the applicant departed AWOL again from 1-9 September 1971.  Upon return to military control, the action was resubmitted to the separation authority who approved the discharge action and directed issuance of a UD on 21 September 1971.  

On 30 September 1971, the applicant was discharged with UD, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  He was credited with 1 year, 8 months and 1 day active service and 196 days lost time.   

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 a UD.

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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  The applicant has failed to show how he was not properly advised by his legal counsel, who was a qualified member of at least one state bar association and was a member of the Judge Advocate General Corps of the Army.  

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

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

__CJP__  __ESC___  _ AMC__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR19990231743	
SUFFIX		
RECON		
DATE BOARDED	19990429	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19710930	
DISCHARGE AUTHORITY	AR635-200, C10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	A01.13	
3.	A01.39	
4.	A92.31	
5.	A94.07	
6.