MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 
	                

	BOARD DATE:      18 March 1998
	DOCKET NUMBER:   AC97-07477

	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 honorable for convenience of the government.  

APPLICANT STATES:  In effect, that his punishment was too severe based on his only completing the tenth grade and the fact he is certified mentally ill.

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

The applicant entered the Regular Army on 30 April 1974 for a period of 3 years at age 19.  He successfully completed basic training at Fort Dix, New Jersey.

The FSM’s record indicates the highest rank he held while on active duty was private/E-2; in addition, there is no evidence of record indicating that he had received any individual awards and decorations, or that had performed any acts of achievement, valor, or service meriting special recognition.  There is an extensive record of AWOL related disciplinary infractions.

On 7 August 1974 while undergoing advanced individual training (AIT) at Fort Meade, Maryland the applicant went AWOL and remained in that status until 14 November 1974.  The applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ for this offense and was reassigned to Fort Leonard Wood, Missouri to attend a different AIT.

The evidence of record indicates that on 20 January 1975 
a DD Form 458 (Charge Sheet) was prepared preferring three charges against the applicant for violation of Article’s 130 (larceny), 121 (stealing), and 92 (disobeying an order for a superior commissioned officer), of the UCMJ.  

Although the specific facts and circumstances of the applicant’s discharge are not a part of the record there is documented evidence that 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 appropriate authority approved the applicant's request for discharge and directed issuance of a UD.  Accordingly, on 
4 March 1975 the applicant was discharged after completing 
6 months and 27 days of active military service, and accruing 100 days of time lost due to AWOL.


On 26 February 1979 the Army Discharge Review Board denied the applicant's request for an upgrade to his discharge.

There is no indication in the record that the applicant was ever diagnosed with a mental illness by medical authorities; in addition, the applicant never raised mental illness as an issue when requesting an upgrade of his discharge from the Army Discharge Review Board.

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, and advisory opinion(s), it is concluded:

1.  There is no evidence of record or independent evidence submitted by the applicant to support his contentions.  There is no indication that the applicant’s education level or mental illness contributed in any material way to the court-martial charges which lead to his discharge.  Therefore, the Board found these factors were not sufficiently mitigating to warrant an upgrade to his discharge.

2.  The applicant was charged with the commission of an offense 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 offense.

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