MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:	BOARD DATE:                              
	DOCKET NUMBER:   AC97-08936

	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:


	Also present, without vote, were:




	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 either a general (GD) or an honorable (HD) discharge.

APPLICANT STATES:  In effect, that after he reenlisted he went home on leave and faced a series of personal problems which caused him to develop a negative attitude toward anything and everything.  He further claims that his post service conduct and achievements have been outstanding and he would now like to remove the memory of the mistake he made by not returning to military duty.  In support of his request the applicant submits two character references and several letters and certificates of achievement relating to his performance as a Department of Corrections Officer for the State of Connecticut.

COUNSEL CONTENDS:  In effect, that the applicant had served honorably between 26 May 1967 and 13 March 1970, to include a 12 month tour of duty in Vietnam; and that the applicant’s mother suffering from terminal cancer was a mitigating factor which diminished his capacity to serve in 1970.

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

On 13 March 1970 the applicant reenlisted in the Regular Army for 3 years at Fort Bragg, North Carolina.  At the time of his reenlistment the applicant had completed 2 years,
9 months, and 17 days of honorable service.  Additionally, he held military occupational specialty (MOS) 94B (Cook) and the additional skill identifier (ASI) P (Parachutist); he had attained the rank of specialist/E-5; he successfully completed a combat tour in Vietnam; and had been awarded the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal/with 60 device.  He also had been tried and found guilty by a special court-martial for a violation of Article 92 of the UCMJ, disobeying a lawful regulation by having in his possession a switchblade knife, for which he was sentenced to forfeit $50.00.

On 2 April 1970 the applicant went AWOL from Fort Bragg, North Carolina, he was dropped from the rolls as a deserter on 2 May 1970, and returned to military control on 6 August 1973.

The evidence of record indicates that on 24 August 1973 
a DD Form 458 (Charge Sheet) was prepared preferring a charge of violation of Article 86 (AWOL) against the applicant for AWOL between 2 April 1970 and 6 August 1973. 

The record also contains documented evidence that on 
30 August 1973 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 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 5 October 1973 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD.  Accordingly, on 1 November 1973 the applicant was discharged after completing only 3 months and 15 days of his current enlistment.  He served a total of 3 years, 1 month, and 2 days of active military service and accrued 1141 days of time lost due to AWOL and confinement.

On 13 January 1977 the Army Discharge Review Board denied the applicant's request for an upgrade to his 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, applicable law and regulations, it is concluded:

1.  The Board, while noting the applicant’s post service accomplishments, determined there was no evidence of record or independent evidence submitted by the applicant which support his contention that his personal problems impaired his ability to serve and determined there was not sufficient mitigation to 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, 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.  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




						Karl F. Schneider
						Acting Director