MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE:
DOCKET NUMBER: AC
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 undesirable discharge (UD) be upgraded to general discharge/under honorable conditions (GD).
APPLICANT STATES: In effect, that because of the Vietnam war the President stayed in school and he was given a UD. He further states that he has been an outstanding citizen, husband, and father for 24 years and would like to go to school and have his record cleared.
EVIDENCE OF RECORD: The applicant's military records show:
On 13 January 1971 he enlisted in the Regular Army for a period of 3 years at age 19.
The applicant's record is void of any significant acts of achievement, valor, or service meriting special recognition. The record documents only one award, the National Defense Service Medal. However, there is documented evidence that the applicant had a history of disciplinary infractions.
On 22 February 1971 the applicant went AWOL from his basic training unit and remained so until 25 February 1971,
a total of 4 days. On 19 March 1971 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for violation of Article 86, UCMJ, (i.e., for being AWOL from his unit between 1 March and 17 March 1971). His punishment for this offense was a forfeit of $65.00; restriction for 30 days; and extra duty for 30 days.
The evidence of record indicates that on 29 December 1971 a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violation of Article 86, UCMJ, (i.e., AWOL for the period 1 March through 17 December 1971).
The record also contains documented evidence that on 5 January 1972 the applicant voluntarily requested discharge for the good of the service, under the provisions of Chapter 10 of AR 635-200, in lieu of trial by court-martial. 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 31 January 1972 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD. Accordingly, on 11 February 1972 the applicant was discharged after completing 3 months and 1 day of active military service and accruing 279 days of time lost due to AWOL.
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 acknowledges the applicants post service good citizenship and his desire to have his record cleared. However, after carefully reviewing the applicants entire service record, the Board did not find these issues sufficiently mitigating to warrant an upgrade of his discharge.
2. The applicant was charged with the commission of offenses 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 offenses under the UCMJ.
3. 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.
4. 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.
5. 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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