MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 	

	BOARD DATE:  
	DOCKET NUMBER:   AR1999023281

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Ms. Debra Williams		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:  That  his undesirable discharge (UD) be upgraded to an honorable discharge (HD). 

APPLICANT STATES:  In effect, that he feels he should not have received a UD. He went absent without leave (AWOL) to attend his father's funeral and was never given an opportunity to explain his circumstances.

COUNSEL STATES:  That the applicant contends that he should not have received a UD, because mitigating circumstances led to his being AWOL.  The applicant stated that he was denied leave to attend his father's funeral.  He also stated that he was not allowed to explain this situation prior to receiving his discharge papers.

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

That on 19 January 1973, he enlisted in the Regular Army for a period of 
4 years and training in military occupational specialty (MOS) 11E (Armor Crewman). He completed basic and advanced individual training and was assigned to Fort Hood, Texas.  

Evidence of record indicates that the applicant was AWOL from 17 - 19 February 1973 and from 16 - 26 November 1973.  

On 22 February 1973, nonjudicial punishment (NJP) was imposed against the applicant under the provisions Article 15, Uniform Code of Military Justice for being AWOL from 17 - 20 February 1973.  His punishment included forfeiture of pay, extra duty and restriction.  The record does not indicate that he received punishment for the period of AWOL from 16 - 26 November 1973.

On 26 December 1973, court-martial charges were preferred against the applicant for disposing of/throwing away his basic issue of military clothing, property of the US Government on 18 December 1973; for two specifications of disobeying a lawful order from a commissioned officer; for one specification of disobeying a lawful order from a noncommissioned officer on 19 December 1973; and for being disrespectful during deportment towards a noncommissioned officer on 19 December 1973.

On 8 January 1974, he 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 offenses for which he was charged could lead to a UD.  He stated that he understood the ramifications of a UD, and he declined to submit a statement in his own behalf.  He was also medically cleared for separation.
On 10 January 1974, the applicant's unit commander recommended separation with a UD.  He stated that the applicant had experienced a great deal of difficulty adjusting to military life and that he had become a user of drugs.  Additionally, he stated that the applicant required a great amount of supervision, he had repeatedly disobeyed orders and that he had been counseled, but he had made no effort to improve himself.

On 10 January 1974, the intermediate commander recommended separation with a UD.  He stated that he had personally interviewed the applicant and reviewed his past record and that he had concluded additional rehabilitative measures would prove fruitless, therefore, the applicant should not be retained in the service.

The senior intermediate commander stated that he had interviewed the applicant twice and concurred with the unit commander and the chaplain and recommended that the applicant be issued a UD. 

On 15 January 1974, competent authority approved the request.  On 23 January 1974, he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  He had completed 11 months, and 24 days of active military service and he had 11 days lost time due to being AWOL. 

Army Regulation 635-200 set 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 discharge was then considered appropriate.

The record indicates the applicant made a personal appearance before the Army Discharge Review Board on 20 June 1989 and was denied an upgrade of his 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.  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.  No evidence has been submitted 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.

3.  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 proper and equitable.

4.  The Board has taken into consideration the mitigating factor submitted by the applicant.  The Board empathizes with the applicant in the loss of his family member.  However, the Board determined that there were other legitimate avenues that he could have pursued in getting assistance with his grief and for resolving his personal problem. 

5.  The applicant was provided many opportunities to explain his circumstances prior to being discharged.  He was counseled by his chain of command numerous times prior to the discharge process.  He also declined to submit a statement in his own behalf during the discharge process.

6.  The Board concludes that the applicant has a less than honorable record of service that does not provide a basis for an upgrade of his discharge. 

7.  In view of the foregoing, there is no basis for granting the applicant's request. 

DETERMINATION:  No sufficient relevant evidence to demonstrate the existence of probable error or injustice has been submitted.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

GDP____  JLP_____  DW_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023281	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19740123	
DISCHARGE AUTHORITY	AR635-200, CH 10 	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	(NC)	
REVIEW AUTHORITY	Director	
ISSUES         1.	A71.00	
2.	A75.00	
3.	A93.07	
4.		
5.		
6.