MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:       .
	    

	BOARD DATE:            29 April 1998             
	DOCKET NUMBER:    AC97-07868

	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.

APPLICANT STATES:  In effect, that his military record was clean for over
2 years and the discharge was excessive for going AWOL with 6 months left on his enlistment.

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

On 28 February 1969 the applicant entered the Regular Army for 3 years.  He successfully completed basic training at Fort Lewis, Washington and advanced individual training (AIT) at Fort Rucker, Alabama.  Upon completion of AIT he was awarded military occupation specialty (MOS) 67M (Helicopter Repairman) and assigned to Hunter Army Airfield, Georgia for his first permanent duty station.

The applicant’s record documents no individual acts of valor, achievement or service warranting special recognition for the period under review.  However, the record indicates the applicant had a record of AWOL related disciplinary infractions which included at least three incidents of AWOL; acceptance of one nonjudicial punishment, under the provisions of Article 15 of the UCMJ; and  a special court-martial.

The applicant went AWOL from his unit at Fort Benning, Georgia between 
13 December 1969 and 29 March 1970.  He again went AWOL from the special processing detachment at Fort Lewis from 25 to 27 July 1970, and again from
31 July to 1 October 1970.  

On  28 May 1970 the applicant was tried by special court-martial for violation of Article 86 for being AWOL from 13 December 1969 to 29 March 1970.  The resultant sentence was confinement at  hard labor for 45 days and reduction to the grade of private E-1.

On 13 October 1970 the applicant accepted an NJP with three specifications.  The first specification was for  being absent from his place of duty on 19 July 1970; the second specification was for being AWOL from 25 to 27 July 1970; and the third was for being AWOL from 31 July to 1 October 1970.  The resultant punishment for these offenses was a forfeiture of $50.00 per month for two months; 14 days of extra duty and restriction to Fort Lewis for 30 days.




The evidence of record is void of facts and circumstances concerning events that led to the applicant’s discharge from the Army.  However, the applicant’s record does contain a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or  Discharge).  The DD Form 214 indicates that the applicant was discharged under the provisions of chapter 10, AR 635-200, for the good of the service-in lieu of court-martial, with a UD.  The DD Form 214 also documents the reason for discharge as for the good of the service which could only have been accomplished at the voluntary request of the applicant based on court-martial charges having been preferred against him.  This action would have also required the applicant’s admission of guilt to the offense or offenses for which he was charged.  The DD Form 214 indicates the applicant was discharged on 20 July 1971 with a UD after completing 1 year, 2 months, and 
26 days of active military service, and accruing 422 days of time lost due to AWOL and confinement.

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, and applicable law and regulations, it is concluded:

1.  The Board noted the applicant’s contentions.  However, after reviewing the applicant’s entire service record, determined these factors do not mitigate the applicant’s misconduct.  Although the applicant’s record is void of facts and circumstances concerning events that led to a discharge from the Army, the Board did note that the applicant’s record contains a properly constituted 
DD Form 214 (Armed Forces of the United States Report of Transfer or  Discharge) which documents the reason and characterization of the discharge and the Board presumed government regularity in preparation of the document. 





2.  The evidence of record is clear, and shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and voluntarily requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have had to admit guilt to the stipulated offense 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




						Loren G. Harrell
						Director