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ARMY | BCMR | CY1997 | 9707485
Original file (9707485.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to honorable.
APPLICANT STATES : In two applications, in effect, that he was never told of the consequences of going AWOL; and that he was not told he could go reserve status.

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

The applicant entered the Regular Army on 17 June 1976 at age 21 for a period of 3 years.

The applicant's record is void of any significant acts of achievement or service meriting special recognition and or evidence of disciplinary infractions prior to the incident for which separation action was accomplished.

The applicant went AWOL from One Station Unit Training at Fort Leonard Wood, Missouri on 25 June 1976, was dropped from the rolls effective 25 July 1976, was apprehended by civil authorities, and returned to military control on
28 October 1976 after having been AWOL for 125 days.

The evidence of record indicates that on 17 November 1976 charges were preferred against the applicant for violation of Article 86 (AWOL) of the UCMJ.

The record also contains documented evidence that on
19 November 1976 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 discharge under other than honorable conditions. 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 Veterans Administration and that he may be deprived of veterans benefits under state and federal law. The applicant also stated that under no circumstances did he desire to perform further military service.

On 3 December 1976 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD. Accordingly, on 10 December 1976 the applicant was discharged after completing 1 month and 21 days of active military service and accruing 125 days of lost time 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 considered all the evidence of record and concluded the applicant's claim that he was not aware of the consequences of his actions is not supported by the evidence of record. Additionally, the Board determined that the applicant made clear his desire not to continue military service under any circumstances; therefore, there are no sufficiently mitigating factors which warrant an upgrade of his discharge. The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and after consulting with legal counsel, the applicant 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.

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. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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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