MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:.
	                 

	BOARD DATE:      18 March 1998       
	DOCKET NUMBER:   AC97-05757

	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:


M

	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 was denied help for marital problems and denied treatment for a psychological illness which impaired his ability to serve.  He further states that this callous treatment caused him to go AWOL.

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

The applicant entered the Regular Army on 28 March 1967 for a period of 3 years at the age of 19.  

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-1.  However, there is a recorded history of repeated AWOL related disciplinary infractions.

On 10 May 1967 while still in basic training the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for violation of Article 86; in that, he did without authority absent himself from his unit on 8 May 1967 and remained so until 10 May 1967.  His punishment for this offense was forfeiture of $20.00, 14 days restriction, and 14 days of extra duty.

The applicant again went AWOL on 2 July 1967 and remained so until 18 October 1967 at which time he returned to military control and was confined until 18 December 1967.

On 12 December 1967 the applicant was tried by summary court-martial and was found guilty of violation of Article 86 for the AWOL period indicated above for which he was sentenced to confinement at hard labor for 30 days (suspended for 30 days); and forfeiture of $50.00.

On 1 July 1968 the applicant was tried by special court-martial and found guilty of violation of Article 86 for being AWOL from 19 January 1968 through 14 May 1968.  He was sentenced to perform hard labor without confinement for 
2 months.

The evidence of record indicates that on 20 February 1969 a 
DD Form 458 (Charge Sheet) was prepared preferring a charge against the applicant for violation of Article 86 for a period of AWOL from 16 August 1968 through 10 February 1969. 

The record also contains documented evidence that on 
28 February 1969 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 1 April 1969 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD.  Accordingly, on 1 April 1969 the applicant was discharged after completing 6 months, and 29 days of active military service and accruing 530 days of time lost due to AWOL and confinement.

On 25 January 1972 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 found no evidence of record or independent evidence submitted by the applicant which supported his contentions that callous treatment, in the form of being denied help for his marital problems or treatment for psychological illness, impaired his ability to serve and was the cause for his repeated incidents of AWOL.  The evidence of record is clear, and shows the applicant was charged with the commission of an offense punishable under the 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.  

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