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Decision Text

ARMY | BCMR | CY1997 | 9708914
Original file (9708914.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions be upgraded to honorable.
APPLICANT STATES : In effect, that his AWOL was a result of his age and immaturity and that under current standards he would have not received as harsh a discharge.

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

He entered the regular Army on 24 October 1975 for a period of 3 years. At the time of his enlistment he was 17 years of age.

He successfully completed basic training at Fort Leonard Wood, Missouri and advanced individual training (AIT) at Fort Sill, Oklahoma. Upon completion of AIT he was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).

On 23 April 1976 the applicant went AWOL from his unit at Fort Carson, Colorado, and remained in that status until he was confined by civil authorities in Topeka, Kansas on
5 May 1976 (11 days), and finally returned to military control on or about 18 May 1976. On 25 May 1976 he accepted nonjudicial punishment (NJP), under Article 15 of the UCMJ, for this period of AWOL and was punished with 7 days of restriction and extra duty, and a forfeiture of $50 dollars.

On 14 December 1976 special court-martial charges were preferred against the applicant for absenting himself from his unit on or about 7 October 1976 and remaining so until on or about 24 November 1976. On 15 December 1976 the applicant was informed of the charges and on 20 December 1976 he was served with a copy of the DD Form 458 (charge sheet).








On 28 December 1976 the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court martial, under the provisions of chapter 10, AR 635-200. The applicant took this action after being fully advised by counsel of the following: the basis for the contemplated trail by court martial; the maximum permissible punishment under the UCMJ; and the possible effects of an undesirable discharge.

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 considered all the evidence of record to include the applicant's age and maturity at the time of his service. However, the Board did not find the applicant's immaturity sufficiently mitigating to warrant an upgrade of his discharge. 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, 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 offenses 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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