MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:             6 May 1998                 
	DOCKET NUMBER:    AC97-10984

	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.	Samuel A. Crumpler		Chairperson	
	Ms.	Karen J. Newsome		Member	
	Mr.	Raymond V. O’Connor JR.		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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).

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

On 13 February 1969 the applicant entered the Regular Army for 3 years at the age of 18.  He successfully completed basic and advanced individual training (AIT) at Fort Polk, Louisiana, was awarded military occupational specialty (MOS) 11B (Infantryman), and assigned to Fort Carson, Colorado for his first permanent duty station.

The applicant’s record documents that the highest grade he held on active duty was private/E-2 and contains no documented acts of valor, achievement, or service warranting special recognition.  However, the record includes an extensive record of AWOL related disciplinary infractions.

On 10 July 1970 the applicant was tried by special court-martial for violation of Article 86 of the UCMJ for being AWOL from 26 September 1969 to 6 June 1970.  He was found guilty and sentenced to be confined at hard labor for 140 days and to forfeit $40.00 per month for 4 months.

The evidence of record indicates that on 22 February 1971 a DD Form 458 (Charge Sheet) was prepared preferring a charge of violation of Article 86 for being AWOL from 4 October 1970 to 6 February 1971.  

The record also contains documented evidence that on 23 February 1971 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 UD.  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 Veteran Affairs, and that he may be deprived of veterans benefits under state and federal law.

On 23 March 1971 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD.  Accordingly, on 30 March 1971 the applicant was discharged after completing 8 months and 6  days of active military service and accruing 527 days of time lost due to AWOL and confinement.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of 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.  However, at the time of the applicant’s separation the regulation provided for the issuance of a UD.

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 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 offenses 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

						Loren G. Harrell
						Director