MEMORANDUM OF CONSIDERATION

	BOARD DATE:           16 September 1998                 
	DOCKET NUMBER:   AC97-05703

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Franklin R. Taylor.		Chairperson	
	Ms. Karen J. Newsome		Member	
	Mr. Ted S. Kanamine		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) to honorable.

APPLICANT STATES:  In effect, his discharge was improper and inequitable.

COUNSEL STATES:  That the applicant was improperly discharged because no attempts were made to rehabilitate him before he received a UD as the the result of his AWOL.  He further stated that the applicant only completed the sixth grade, dropped out of school and has insufficient skills and/or the mental resources to understand orders given him, such as Army rules and regulation.  Therefore, Counsel contends his discharged should have been under AR 635-209 (Unsuitability) not AR 635-200, for leaving his active duty unit to go home, since he felt his wife needed him there.

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

He was born on 15 April 1943 and was inducted in the Army for 2 years on 5 October 1970.  His Armed Forces qualification Test (AFQT) score was 76, Category II.  Following completion of the required basic combat training, at Fort Lewis, Washington, he was assigned to a unit at Fort Ord, California, for advanced individual training.

The applicant was first listed as absent without leave (AWOL) from 18 to 19 January 171.  He received nonjudicial punishment, under Article 15, Uniform Code of Military Justice.  His punishments included forfeiture of pay, 14 days restriction company area, not to prelude attendance at church or place of training, extra duty for a period of 14 days with the latter two punishments to run concurrently.  He then went AWOL again from 1 February to 22 July 1971.  Upon his return to military control at Fort Ord, he was processed for separation.  However, the discharge proceedings are not a matter of record.

ON 23 September 1971, the applicant was discharged with a UD, under the provisions of chapter 10, AR 635-200, for the good of the service, in lieu of trial by court-martial.  The applicant was credited with 5 months and 14 days of active service and 174 days lost time during two periods of AWOL.  He never completed his military training and was still in a “trainee” status at the time of his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 trail 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.  Army policy states that although an honorable or general discharge is authorized, a discharge UOHC is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of a UD.

There is no evidence of record that the applicant ever requested a review of his discharge by the Army Discharge Review Board within the 15 year statute of limitations for applicant to that Board.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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 the aforementioned requirement.

2.  While the applicant had limited schooling, there is no evidence presented that he was not capable of completing his military training.  His AFQT score was high which indicated that the applicant had the capability to train, but would not train.  He also completed his basic combat training.

3.  Trail by court-martial was warranted by the gravity of the offenses charged.  The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial.  The discharge proceedings were conducted in accordance with the law and regulations applicable at the time with the applicant’s signature on his DD-214 confirming his acceptance of an chapter 10 discharge.  The character of the discharge is commensurate with the applicant’s overall record.

4.  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

FRT        KJN        TSK      DENY APPLICATION

						Karl F. Schneider
						Acting Director