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ARMY | BCMR | CY1997 | 9705660
Original file (9705660.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION

         IN THE CASE OF:.
        

         BOARD DATE: 8 April 1998
         DOCKET NUMBER: AC97-05660

         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:
Ms. Joann H. Langston Chairperson
Mr. George D. Paxson 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 undesirable discharge (UD) be upgraded.
APPLICANT STATES : In effect, that he entered the Army at age 16 when his father signed for him to join; that he was too young and immature while he was in service; that he knows his actions were irresponsible but he didn’t know better at the time; that he hopes to have his discharge upgraded because he is in poor health, and would like to be treated at a Veterans Administration Medical Center (VAMC).

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

The applicant entered the Regular Army on 20 October 1972 for a period of 3 years. The applicant’s age at enlistment was
17 as evidenced by his records, which document his date of birth as 12 October 1955. He successfully completed basic training at Fort Knox, Kentucky and after completing on the job training, was awarded military occupational specialty (MOS) 94A (Cook’s Helper).

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. However, there is an extensive record of AWOL related disciplinary infractions.

On 22 February 1973 the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for violation of Article 86, for being AWOL between
14 and 19 February 1973. His punishment for this offense included forfeiture of $150.00 per month for 2 months, and restriction to the company area for 30 days.

On 15 March 1973 he again accepted an NJP for violation of Article 86, for being AWOL between 12 and 13 March 1973; and violation of Article 134, for breaking restriction on 12 March 1973. The resultant punishment included forfeiture of $150.00 per month for 2 months, and correctional custody for
30 days.

The evidence of record indicates that on 13 February 1974 a
DD Form 458 (Charge Sheet) was prepared preferring a charge against the applicant for violation of Article 86 with two specifications: the first for being AWOL between 24 March and 30 July 1973; and the second for being AWOL from 30 July 1973 through 18 January 1974.

The record also contains documented evidence that 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 8 March 1974 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD. Accordingly, on 20 March 1974 the applicant was discharged after completing 7 months and 1 day of active military service and accruing 306 days of time lost due to AWOL.

On 4 April 1984 the Army Discharge Review Board denied the applicant's request for an upgrade to his discharge and found that the discharge process was proper in all respects.

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 Board noted the applicant’s contentions the his youth and immaturity contributed to his irresponsible acts; thus impairing his ability to serve; and that he was now in poor health and desired medical care at a VAMC. However, in view of the applicant’s record, the Board determined these factors are not sufficiently mitigating to warrant an upgrade of the applicant’s characterization of service.

2. 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 UD.

3. 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.

4. 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.

5. 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

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