MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:  BOARD DATE: 24 June 1998
         DOCKET NUMBER: AC97-06825

         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.	Karen J. Newsome		Chairperson
Mr.	Robert W. Garrett		Member
Mr.	James P. Huber		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)

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APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES: In effect, that he was unaware he could apply for an upgrade.

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

On 7 November 1967 the applicant was inducted into the Army of the United States for 2 years at the age of 18.

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 an extensive record of disciplinary infractions which includes the applicant being tried by special court-martial on four separate occasions; by summary court-martial on one occasion; and his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ.

On 2 May 1968 the applicant was tried by summary court-martial for two specifications of violation of Article 86 of the UCMJ. The first specification was for being AWOL from 12 to 20 February 1968 and the second specification was for being AWOL from 17 to 26 March 1968. He was found guilty and sentenced to forfeit $50.00 and to be restricted for 30 days.

On 4 June 1968 the applicant was tried by special court-martial for violation of Articles 86 and 134 of the UCMJ. The first charge was for being AWOL from
11 to 14 May 1968, and the second charge was for breaking restriction. The applicant was found guilty and sentenced to be confined at hard labor for
6 months and to forfeit $72.00 per month for 6 months.

On 29 August 1968 the applicant was again tried by special court-martial for violation of Articles 91 (two specifications), 86, and 134 of the UCMJ. The first charge was for assaulting a superior noncommissioned officer and willfully disobeying a lawful order; the second charge was for being AWOL from 11 to
23 July 1968; and the third charge was for breaking restriction. The applicant was found guilty of all charges and specifications. His sentence included confinement at hard labor for 6 months and a forfeiture of $73.00 per month for 6 months.

On 27 November 1968 the applicant was tried, a third time, by special court-martial for two specifications of violation of Article 86 of the UCMJ. The first specification was for being AWOL from 5 September to 2 October 1968; and the second specification was for being AWOL from 14 to 31 October 1968. The applicant was found guilty and sentenced to confinement at hard labor for
4 months and to forfeit $73.00 per month for 4 months.

On 2 April 1969 the applicant accepted an NJP for being AWOL from 17 March to 1 April 1969. His punishment for this offense was to forfeit $16.00 and to perform extra duty for 14 days.

On 5 June 1969 the applicant underwent his final trial by special court-martial for violation of Article 86 of the UCMJ. He was charged with being AWOL from
22 April to 20 May 1969. The applicant was found guilty and the resultant sentence included confinement at hard labor for 6 months, and a forfeiture of $72.00 per month for 6 months.

On 19 December 1969 a court-martial charge was preferred against the applicant for violation of Article 86 for being AWOL from 20 October to
12 December 1969.

The evidence of record documents that on 23 December 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 the 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.

The specific facts and circumstances of the approval of the applicant’s discharge are not on file; however, the record contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which was authenticated by the applicant. This document identifies that the reason for discharge was for the good of the service-in lieu of trial by court-martial, and the characterization of the discharge was UD. The DD Form 214 also documents that the applicant was discharged on 20 January 1970 after completing 1 year, 10 months, and 16 days of active military service, and accruing 118 days of time lost due to AWOL and confinement.

There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within the 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. 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 that the applicant’s record contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which was authenticated by the applicant. This document identifies the reason and characterization of the discharge and the Board presumed government regularity in the discharge process. 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.

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. 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