MEMORANDUM OF CONSIDERATION
IN THE CASE OF BOARD DATE: 21 May 1998
DOCKET NUMBER: AC97-07495
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 a general/under honorable conditions discharge (GD).
APPLICANT STATES: In effect, that the Army had him in an AWOL status for some periods that he was actually on duty in the field.
EVIDENCE OF RECORD: The applicant's military records show:
On 20 July 1971 the applicant entered the Regular Army for a period of 3 years at the age of 18. He successfully completed basic training at Fort Polk, Louisiana and was assigned to Fort Hood, Texas, to perform duties in military occupation specialty 94B (Cook) based on his civilian acquired skills, for his first permanent duty station.
The applicants record documents no individual acts of valor, achievement, or service warranting special recognition, and indicates the applicant never advanced beyond the rank of private/E-1. However, there is a record of repeated AWOL related disciplinary infractions which directly relate to the reason for the applicants ultimate discharge.
The evidence of record indicates that on 7 June 1973 a DD Form 458
(Charge Sheet) was prepared preferring a charge, with seven specifications, against the applicant for violation of Article 86 for being AWOL for the following periods: 19 October to 12 November 1971; 17 November 1971 to 11 April 1972; 17 April to 18 August 1972; 21 to 30 August 1972; 1 September to 8 November 1972; 13 November 1972 to 22 February 1873; and 6 March to 6 June 1973.
The record also contains documented evidence that on 7 June 1973, the applicant voluntarily requested discharge for the good of the service-in lieu of trial by court-martial, 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 Veteran Affairs, and that he may be deprived of veterans benefits under state and federal law.
On 27 June 1973 the appropriate authority approved the applicant's request for discharge and directed issuance of a discharge UD. Accordingly, on
14 August 1973 the applicant was discharged after completing 5 months of active military service and accruing 609 days of time lost due to AWOL.
On 18 June 1978 the Army Discharge Review Board (ADRB) denied the applicants request for an upgrade to his discharge and found that the discharge process was proper in all respects.
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.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, and applicable law and regulations, it is concluded:
1. The evidence of record and the independent evidence submitted by the applicant does not support the applicants contention that he was erroneously charged with AWOL periods. However, the evidence does show the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (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 offense under the UCMJ, and attested to his understanding of the possible loss of veterans benefits based on receiving a UD discharge.
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
Loren G. Harrell
Director
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