MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:       

	BOARD DATE:             6 May 1998                 
	DOCKET NUMBER:    AC96-10846

	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:




	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 a general/under honorable conditions discharge (GD) or an honorable discharge (HD).

APPLICANT STATES:  In effect, that the UCMJ standards had been recently changed and that if he had gone AWOL earlier he would not have been held to as strict a standard; that he had served honorably and attained the rank of sergeant/E-5; that he went AWOL because he contacted the unit he was reporting to and informed them he had been picked up for DUI, and they told him he would be reported AWOL if he went to jail; that he got mad and felt that if he was going to get in trouble anyway, whether it was one day or 100 days, he just never went back.

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

The applicant reenlisted for 6 years on 8 October 1968 at Knielingen, Germany.  At the time of his reenlistment the applicant had completed 8 months and 3 days of honorable service; attained the rank of private first class/E-3; and held military occupational specialty (MOS) 62A (Engineer Equipment Repairman).

The applicant's record indicates that during the period of service under review the applicant was promoted through the rank of specialist/E-5, which he attained on 17 October 1969.  He successfully completed a combat tour in Vietnam on
6 July 1970 for which he earned the Vietnam Service Medal and the Vietnam Campaign Medal.  The record contains no other documented acts of valor, achievement, or service warranting special recognition.  However, there is a recorded history of disciplinary problems.

On 2 February 1971 the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for failing to go to his prescribed place of duty on 31 January 1971.  His punishment for this offense was 14 days of extra duty and restriction.  On 20 April 1971 the applicant accepted a second NJP for failing to report to guard duty on 16 April 1971.  His punishment was a forfeiture of $70.00 (suspended) and 10 days of restriction and extra duty.

The applicant went AWOL from the overseas replacement center at Fort Dix, New Jersey on 26 July 1971 and remained away until 21 February 1973.  

On 5 March 1973 the applicant was notified by the assistant adjutant of the personnel control facility at Fort Dix of the intent to eliminate him, under the provisions of chapter 13, AR 635-200 for unfitness.  On 8 March 1973 the applicant consulted counsel, and after being advised of the basis for the contemplated separation action against him, he completed his election of rights. The applicant waived the following rights:  consideration of his case before by a board of officers; personal appearance before a board of officers; and  representation by counsel; in addition, he elected not to make a statement in his own behalf.

On 28 March 1973 the applicant’s unit commander, recommended the applicant be discharged; under the provisions of paragraph 13-5a, AR 635-200, for unfitness. The commander cited the applicant’s 571 days of AWOL as the reason for his action.  The first intermediate level commander recommended approval of the separation action on the same day and recommended a UD.

On 18 April 1973 the appropriate authority approved the separation action and directed the applicant be discharged with a UD.  Accordingly, on 2 May 1973 the applicant was discharged after 2 years, 10 months, and 9 days of his current enlistment and a total of 3 years, 6 months, and 11 days of active military service and accruing 620 days of time lost due to AWOL and confinement.  

The maximum punishment  provisions of the Manual of Courts-Martial (MCM) United States (1969 Edition), in effect, at the time, allowed for punitive discharges for AWOL periods over 30 days.  Additionally, the maximum punishment provisions of the 1949 edition of the MCM provided for  punitive discharges for AWOL periods over 60 days.

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 13, then in effect, provided the policy and outlined the procedures for separating individuals for unfitness.

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 found that the evidence of record and the independent evidence submitted by the applicant does not support his contention that his discharge was improper based on a change in standards of the UCMJ.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Neither the punitive discharge standards contained in the 1969 or 1949 editions of the MCM would have provided a more favorable standard for the applicant in his case.



2.  The Board noted the applicant’s contentions that he had served honorably, attained the pay grade of E-5, and that he got mad when he was told he would be charged with AWOL while home on leave.  However, the Board determined these factors did not mitigate the applicant’s misconduct. The Board was satisfied that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  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