MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:       
	    


	BOARD DATE:            30 September 1998                  
	DOCKET NUMBER:    AC97-07480

	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 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.

APPLICANT STATES:  In effect, that he was counseled by his unit commander and his psychiatrist who both assured him he would receive an honorable discharge (HD).

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

On 20 November 1969 the applicant entered the Regular Army for a period of 
3 years at the age of 18.  The applicant successfully completed basic training at Fort Polk, Louisiana and advanced individual training (AIT) at Fort Belvoir, Virginia.  Upon completion of AIT he was awarded military occupational specialty (MOS) 62B (Engineer Maintenance Equipment Repairman) and assigned to combat duty in Vietnam for his first permanent duty station.

The applicant’s record shows that the highest grade he held on active duty was private first class/E-3 and that he has earned the National Defense Service Medal, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.  The record contains no other documented acts of valor, achievement, or service warranting special recognition.  However, there is a disciplinary record which includes his acceptance of nonjudicial punishment (NJP) on two separate occasions.  The record also documented several periods of AWOL, totaling 
247 days, as follows:  4 to 28 January 1970; 2 to 27 June 1970; 8 September to 
2 October 1970;3 to 6 February 1972; 6 March to 3 April 1970; 4 April to 
6 August 1972; and 1 to 13 September 1972.  

On 21 July 1970 the applicant accepted an NJP for being AWOL from 2 June to 28 June 1970.  He was punished with a reduction in rank to private/E-1, forfeiture of $ 31.00 and 14 days of restriction.

On 31 January 1971 the applicant accepted his second NJP for being drunk and disorderly.  His punishment included a forfeiture of $24.00 (suspended for 
60 days), reduction in rank to private/E-2 (suspended for 60 days), and 14 days restriction.

The evidence of record shows the that court-martial charges were preferred against the applicant for the AWOL period from 6 March to 7 August 1972.  The record also shows that on 24 August 1972 the applicant consulted counsel, and after being advised of the basis for the contemplated court-martial, elected to voluntarily request discharge for the good of the service, under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial.  

The applicant was fully advised that he would lose many Army benefits and veteran’s benefits afforded under federal and state law, and that he could expect to encounter substantial prejudice in civilian life based on receiving a UD.  The applicant completed his request by attesting to the fact that he fully understood the ramifications of the discharge and that he was not forced to make the request.

On 6 September 1972 the appropriate authority approved the applicant’s request for discharge and directed the applicant be issued a UD.  Accordingly, on 
13 September 1972 the applicant was discharged after completing 2 years, 
1 month, and 17 days of active military service and accruing 247 days of time lost due to AWOL.

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.  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 concluded the applicant’s contentions, that he was not afforded proper counsel and that he did not understand the ramifications of his discharge; were unfounded.  The evidence of record clearly shows the applicant was fully advised, by counsel, of the negative aspects of accepting a UD and still persisted in voluntarily requesting discharge.  

2.  The evidence of record documents that the applicant was charged with the commission of an offense punishable, under the provisions of the UCMJ, with a punitive discharge, and that he voluntarily 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.  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




						Loren G. Harrell
						Director