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ABCMR Memorandum of                                                                    AC97-09262
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:             21 May 1998                 
	DOCKET NUMBER:    AC97-09262

	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.  The following members, a quorum, were present:

| Mr. | Fred N. Eichorn | | Chairperson
| Mr. | Raymond V. O’Connor | | Member
| Mr. | James M. Alward | | Member

	Also present, without vote, were:

| Mr. | Loren G. Harrell | | Director
| Mr. | Joseph A. Adriance | | Analyst

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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, that his discharge under other than honorable conditions (UOHC) be upgraded to a general/under honorable conditions discharge (GD) or an honorable discharge (HD).

APPLICANT STATES:  In effect, that his discharge was based on one isolated incident in 7 years of service; that he went AWOL on advise to go to work to support his family and to pay for a new house; and that he does not feel he disgraced himself or the military service.

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

On 17 November 1977 the applicant was involuntarily ordered to active duty for 16 months and 15 days based on his unsatisfactory participation in unit training assemblies with the Mississippi Army National Guard.  At the time his active duty began the applicant held military occupational specialty (MOS) 62B (Construction Equipment Repairman).

The applicant’s record documents no individual acts of valor, achievement, or service warranting special recognition, and indicates the applicant never advanced beyond the rank of private/E-2.

The evidence of record indicates that less than a month after reporting for active duty, while still at the reception station at Fort Jackson, South Carolina, the applicant went AWOL.  On 5 January 1978 the applicant was dropped from the rolls and did not return to military control until apprehended by civil authorities on 11 June 1978.

On 27 June 1978 a DD Form 458 (Charge Sheet) was prepared preferring a charge against the applicant for violation of Article 86 for being AWOL from 
7 December 1977 to 12 June 1978.

The record also contains documented evidence that on 28 June 1978, the applicant voluntarily requested discharge for the good of the service-in lieu of trial by court-martial, under the provisions of chapter 10 of AR 635-200.  This request was made after the applicant had been advised by counsel of the basis for his contemplated trial by court-martial, the maximum permissible punishment, and of the possible effects of a UOHC.  He attested to the fact that he fully understood he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veteran Affairs, and that he may be deprived of veterans benefits under state and federal law.  Additionally, he admitted guilt to the offense for which he was charged, and stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.
On 29 June1978 the applicant’s unit commander recommended approval of the applicant’s request for discharge for the good of the service, in lieu of trial by court-martial.  In his endorsement the unit commander indicated that he had personally interviewed the applicant who stated his AWOL was caused by family problems.  The applicant in his interview with the commander indicated he  desired to be eliminated from service under the provisions of chapter 10.  The commander concluded by recommending approval of the chapter 10 based on  the applicant’s personal conduct, his attitude toward military life, and his lack of rehabilitation potential.

On 26 July 1978 the appropriate authority approved the applicant's request for discharge and directed issuance of a UOHC.  Accordingly, on 
2 August 1978 the applicant was discharged after completing 2 months and 
11 days of active military service and accruing 185 days of time lost due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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 are 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. 

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 Board noted the applicant’s contention that he went AWOL to take care of his family and that his AWOL was an isolated incident.  However, the evidence of record is clear, and shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge and after consulting with legal counsel, he voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offense under the UCMJ, and attested to his understanding of the possible loss of veterans benefits based on receiving a UOHC discharge.

2.  The discharge proceedings were conducted in accordance with law and regulation applicable at the time.  The reason for and the character of the discharge are commensurate with the applicant's overall record of military service.

3.  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.

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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director