MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:.

	BOARD DATE:              3 June 1998               
	DOCKET NUMBER:      AC97-05772

	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 discharge under other than honorable conditions (UOHC) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was the subject of mass punishment.

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

On 5 June 1976 the applicant entered the Regular Army for a period of 3 years.  He successfully completed One Station Unit Training at Fort Benning, Georgia, was awarded military occupational specialty (MOS) 11B (Infantryman), and sent to Fort Ord, California for his first permanent duty station.

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 a record of repeated AWOL related disciplinary infractions which include the applicant accepting nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ.

On 31 October 1979 the applicant accepted an NJP for his first AWOL period of 28 days, between 13 September and 10 October 1979.  His punishment for this offense was 14 days of restriction and extra duty.

The applicant had a second AWOL period of 8 days from 3 April  to 11 April 1980.  He again went AWOL from 15 April 1980 and remained away 195 days before returning to military control on 26 October 1980.  The record also documents a 11 day period of confinement by civil authorities between 20 and 30 November 1980.

The evidence of record indicates that on 26 June 1980 a court-martial charge was preferred against the applicant for violation of Article 86 for his period of AWOL from 15 April to 26 October 1980. Although the applicant’s record is void of facts and circumstances concerning events that led to his discharge from the Army, it does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty).  This documents that the applicant was discharged under the provisions of chapter 10, AR 635-200, for administrative discharge-conduct triable by court-martial with a characterization of service of UOHC.  This separation action could only have been accomplished after the applicant voluntarily requested separation from the Army in lieu of court-martial.  In doing so, the applicant would have had to admit guilt to the stipulated offense or offenses for which he was charged.



The DD Form 214 also documents the applicant was discharged on 15 April 1981 after completing 1 year, 2 months, and 9 days of active military service and accruing 242 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 within its 15-year statute of limitations.

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 applicant, together with the evidence of record, and applicable law and regulations, it is concluded:

1.  There is no corroborating evidence to support the applicant’s contention that he was the subject of mass punishment.  The Board examined the applicant’s record of service during the period of enlistment under review, and concluded the discrediting entries in the applicant’s record were not mitigated by prior or subsequent service of sufficient merit to warrant an upgrade of the discharge being reviewed.

2.  The evidence of record, as documented by a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was discharged under the provisions of chapter 10, AR 635-200, by reason of administrative discharge-conduct triable by court-martial with a characterization of service of under other than honorable conditions.  The Board noted this separation action could only have been accomplished after the applicant voluntarily requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have had to admit guilt to the stipulated offense or offenses for which he was charged.

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