MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:  
	                 

	BOARD DATE:      8 April 1998
	DOCKET NUMBER:   AC97-05684

	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:  The former service member’s (FSM) spouse requests, in effect, that his discharge under other than honorable conditions (UOHC) be upgraded to honorable.

APPLICANT STATES:  The FSM’s spouse states, in effect, that the FSM had worked very hard to overcome his AWOL charges; that he had family problems at the time of his AWOL; that he waited so long to apply for an upgrade because he didn’t know how; and that he had served over two years and deserved some benefits.

EVIDENCE OF RECORD: The FSM’s military records show:

The FSM entered the Regular Army on 4 January 1977 for a period of 3 years.  He successfully completed basic and advanced individual training at Fort Dix, New Jersey, was awarded military occupational specialty (MOS) 64C (Motor Transport Operator), and was sent to Fort Hood, Texas for his first permanent duty assignment.

The evidence of record documents that the highest grade the FSM held while on active duty was private first class/E-3, which he attained on 1 November 1977.  The record shows no other significant acts of achievement, valor, or service warranting special recognition on the part of the applicant; however, it does include an extensive record of disciplinary infractions.

On 28 April 1978 the FSM accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for failing to go to his prescribed place of duty on two different occasions.  His punishment for these offenses was reduction to private/E-2 (suspended for 60 days), and extra duty for 3 days.  On 9 May 1978 the FSM’s unit commander vacated the suspended portion of the FSM’s punishment and ordered the reduction imposed.

On 14 August 1978 the FSM was tried by summary court- martial and found guilty of being AWOL from 11 July until 
1 August 1978.  His sentence included: reduction to private/ E-1; hard labor for 30 days/without confinement; and  forfeiture of $150.00.

On 21 November 1978 the FSM accepted his second NJP for failing to go to his prescribed place of duty on
19 October 1978.  The resultant punishment for this offense was forfeiture of $75.00 and 7 days of extra duty.

On 3 January 1979 the FSM went AWOL from his unit at Fort Hood, Texas.  He was dropped from the rolls on 2 February 1979, was apprehended by civil authorities and returned to military control on 23 January 1981.

Although the specific facts and circumstances pertaining to the FSM’s discharge are not on file, the record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge From Active Duty) which was authenticated by the FSM.  The DD Form 214 documents the following: authority for discharge as Chapter 10, AR 635-200; the narrative reason for discharge as Administrative Discharge-conduct triable by court-martial; and the character of service as under other than honorable conditions.  This type of discharge could only have been accomplished at the voluntary request of the FSM and would have required his admission of guilt to an offense or offenses punishable with a punitive discharge.

The DD Form 214 also recorded the FSM’s discharge date as
26 February 1981 and showed the he had completed 2 years and
12 days of active military service and accrued 740 days of time lost due to AWOL.

There is no evidence that the FSM ever applied to the Army Discharge Review Board (ADRB) for a review of his case.

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 FSM’s spouse, together with the evidence of record, and applicable law and regulations, it is concluded:

1.  The FSM’s record is void of facts and circumstances concerning events that led to his discharge from the Army.  However, the Board did note that the FSM’s record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty). This document indicates that the FSM was discharged under the provisions of chapter 10, AR 635-200, for the good of the service-in lieu of court-martial with a UOHC.  The Board presumed government regularity in preparation of the document.  The Board noted that the FSM’s separation action could only have been accomplished after the FSM voluntarily requested separation from the Army in lieu of court-martial.  In doing so, the FSM admitted guilt to the stipulated offense or offenses for which he was charged. Finally, the Board considered the FSM’s entire record of service for the period under review. However, this service was determined to be not sufficiently mitigating to warrant an upgrade of his discharge.

2.  In order to justify correction of a military record the FSM’s spouse must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The FSM’s spouse has failed to submit evidence that would satisfy the aforementioned requirement.

3.  In view of the foregoing, there is no basis for granting the FSM’s spouse request. 

DETERMINATION:  The FSM’s spouse 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