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ARMY | BCMR | CY1997 | 9707416
Original file (9707416.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to honorable.
APPLICANT STATES : In effect, that at the time of his discharge the only offer made to him was to get locked up for 6 months or a UD. He further claims no treatment was offered at the time. Additionally, the applicant enclosed, in support of his request, a letter attesting to his good standing in the Maryland Homeless Veterans Inc.

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

The applicant enlisted in the Regular Army on 15 September 1969 for a period of 3 years at age 18. He successfully completed basic training at Fort Bragg, North Carolina, advanced individual training at Fort Jackson, South Carolina, was awarded military occupational specialty (MOS) 36K (Message Clerk), and was sent to Fort Riley, Kansas for his first permanent duty station.

The applicant's record is void of any significant acts of achievement, valor, or service meriting special recognition. His record contains documentation of only one award, the National Defense Service Medal. However, there is documented evidence that the applicant had a history of disciplinary infractions which included his acceptance of nonjudicial punishment (NJP),under the provisions of Article 15 of the UCMJ, on three separate occasions and two convictions by special court martial.

On 29 January 1970 the applicant accepted an NJP for violation of Article 121 (Stealing a Field Jacket). His punishment for this offense was a reduction in rank from private/E-2 to private E-1 and forfeiture of $55.00.

On 5 November 1970 the applicant, after advancing back to the rank of specialist/E-4, was tried by special court-martial for violation of Articles 86, 91, 90, 134, and 92 of the UCMJ as follows: AWOL, from 18 September to 5 October 1971; disrespectful in language to a superior noncommissioned officer on 19 October 1970; disobey a lawful command on 19 October 1970; disrespectful in language to a military superior on 17 September 1970; and violation of a lawful general regulation on 19 October 1970. He was convicted and sentenced to confinement at hard labor for
2 months (suspended for 6 months); reduction in rank from specialist/E-4 to private/E-1; and forfeiture of $88.00 per month for 3 months.

On 26 March 1971 the applicant was tried by special court-martial for violation of Article 86 (AWOL between 4 January and 8 February 1971). The applicant pleaded guilty and was sentenced to confinement at hard labor for 4 months (suspended) and to forfeit $75.00 per month for
4 months.

On 8 June 1971 the applicant accepted a second NJP for violation of Article 86 (AWOL between 4-6 June 1971). His punishment consisted of 14 days of extra duty and 14 days of restriction.

On 1 July 1971 the applicant accepted a third NJP for violation of Article 86 (failure to go to appointed place of duty) and given 14 days of extra duty as punishment.

The evidence of record indicates that on 23 November 1971
a DD Form 458 (Charge Sheet) was prepared preferring a charge of violation of Article 86 (AWOL) with two specifications against the applicant. The first specification was for the applicant’s failure to go to his appointed place of duty on 30 August 1971, and the second specification was for a period of AWOL between 14 September and 21 November 1971. On 31 March 1972 an additional charge sheet was prepared adding a violation of Article 134 for the applicant’s possession of narcotics paraphernalia.

The record also contains documented evidence that on
21 March 1972 the applicant voluntarily requested discharge for the good of the service, 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 Veterans Affairs and that he may be deprived of veterans benefits under state and federal law.

On 21 June 1972 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD. Accordingly, on 30 June 1972 the applicant was discharged after completing 2 years, 3 months, and 14 days of active military, and accruing 182 days of time lost due to AWOL.

On 23 August 1977 the Army Discharge Review Board denied the applicant's request for an upgrade to his discharge.

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, applicable law and regulations, it is concluded:

 1. The Board found no evidence of record or independent evidence submitted by the applicant which supports his contentions that his limited options or the lack of proper treatment at the time of discharge impaired his ability to serve or were sufficiently mitigating factors warranting an upgrade of his discharge. The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and after consulting with legal counsel, 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 offenses 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

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