MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 May 2003                  
	DOCKET NUMBER:   AR2002080750

	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	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Frank C. Jones, II		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 discharge be upgraded.

APPLICANT STATES:  In effect, he has learned from his mistakes and has been a good citizen and productive member of his community.  He states that he was told that his discharge would be automatically upgraded after a period of time.  In effect, he contends that the four letters provided show his contributions to his community and that an upgrade is warranted. 

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

The applicant entered active duty on 26 March 1970.  He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist).  He reenlisted after 8 months on 11 December 1970 and was transferred to Vietnam. 

While in Vietnam, from 13 February 1971 through 30 November 1971, the applicant served with four different units.  In the first and last units he served in his primary MOS and as a security guard with the middle two units.  He was promoted to specialist four in April 1971.

Notwithstanding two nonjudicial punishments (NJPs) under Article 15, Uniform Code of Military Justice (UCMJ), for four instances of absence from his appointed place of duty, his conduct and efficiency were described as excellent with all four units. 

The applicant was reported AWOL (absent without leave) from 1 February 1972 through 10 February 1972.  On 25 February 1972, he received a third NJP for the AWOL period and disobeying a direct order.
  
He was AWOL, again from 7 May 1972 through 6 June 1972 and 7 June 1972 through 10 July 1972.  On 11 July 1972 court-martial charges were preferred for those AWOL periods.

On 20 July 1972, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulations 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive an UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge.

The discharge authority approved his request and directed that he be reduced to the lowest enlisted grade and be issued an undesirable discharge.

The applicant was discharged, on 5 September 1972, with an undesirable discharge.  He had 2 years, 2 months, and 24 days of creditable service with 76 days lost due to AWOL and 71 days of excess leave.

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 an undesirable discharge.

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

The applicant submitted a note from his wife saying they have been married for thirty years and that he has been a good husband, a good father to their four children, a hard worker and a good provider.  A local minister writes that he has known the applicant for 15 years and can attest that he is a law abiding citizen, his employer's human resource department reports that he has been a dependable and trustworthy employee since June 1984 and the commander of the local American Legion post states that he has known the applicant for 19 years and that he has never been in any trouble.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  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.  His service is appropriately characterized by his overall record.

2.  At the time that the applicant requested discharge he signed a statement that there was no automatic review or upgrade consideration for the characterization of his discharge.

3.  While the Board has taken note of the applicant's reported good post-service conduct, it is not so meritorious as to outweigh the offenses that led to his discharge.

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 this 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

__LLS___  __LE___  __FCJ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002080750	
SUFFIX		
RECON		
DATE BOARDED	20030529	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	Upgrade post service	
2.		
3.		
4.		
5.		
6.