Author: WoodsHN

ABCMR Memorandum of                               AC97-10972
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:                              
	DOCKET NUMBER:   AC97-10972

	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. | | | Chairperson
| Mr. | | | Member
| Mr. | | | Member

	Also present, without vote, were:

| Mr. | Karl F. Schneider | | Acting 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 honorable.

APPLICANT STATES:  In effect, that it is in the interest of justice to upgrade his discharge.

COUNSEL CONTENDS:  In effect, that the applicant contends that his ability to serve as an infantryman was diminished due to a physical disability involving his right knee and that he had attempted to deal with his disability by changing his military occupation specialty.

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

On 16 October 1979 the applicant entered the Regular Army for a period of 3 years at age 19.  He successfully completed One Station Unit Training, at Fort Benning Georgia, was awarded military occupational specialty (MOS) 11C (Motar Man) and remained at Fort Benning for his first permanent duty assignment.

On 20 May 1981 the applicant went AWOL from his unit and remained so until he returned voluntarily on 2 June 1981.  He again went AWOL on 17 June 1981, was dropped from the rolls on 17 June 1981 and returned to military control at Fall River, Massachusetts on 11 August 1981.

The evidence of record indicates that on 12 August 1981 
a DD Form 458 (Charge Sheet) was prepared preferring a charge of violation of Article 86 (AWOL) against the applicant for being AWOL between 17 June 1981 and 11 August 1981. 

The record also contains documented evidence that on 
13 August 1981 the applicant voluntarily requested discharge for the good of the service, 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 discharge UOHC. The applicant also 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 Veterans Affairs and that he may be deprived of veterans benefits under state and federal law.  

On 20 August 1981 the appropriate authority approved the applicant's request for discharge and directed issuance of a discharge UOHC.  Accordingly, on 15 September 1981 the applicant was discharged after completing 1 year, 8 months and 23 days of active military service, and accruing 69 days of time lost due to AWOL.

On 6 December 1996 the Army Discharge Review Board denied the applicant's request for an upgrade to his discharge.

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, applicable law and regulations, it is concluded:

1.  The Board determined there was no evidence of record or independent evidence submitted by the applicant which supported his claim that his physical disability impaired his ability to serve sufficiently to provide mitigation warranting an upgrade to his discharge.  The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and after consulting with legal counsel, 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.  

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

						Karl F. Schneider
						Acting Director