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ARMY | BCMR | CY1997 | 9709513
Original file (9709513.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:

         BOARD DATE: 18 March 1998
         DOCKET NUMBER: AC97-09513

         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:
Mr. John N. Slone Chairperson
Mr. Thomas N. Kuhn Member
Ms. Celia L. Adolphi Member

         Also present, without vote, were:
Mr. Karl F. Schneider Acting Director
Mr. Joseph A. Adriance Analyst

         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 his AWOL was the result of a conflict with his Lieutenant which began over a haircut and escalated into him going AWOL.

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

The applicant entered the Regular Army on 1 November 1972 for a period of 4 years at the age of 19. He successfully completed basic training at Fort Knox, Kentucky and advanced individual training (AIT) at Fort Benning, Georgia. Upon completion of AIT the applicant was awarded military occupational specialty (MOS) 11B (Infantryman) and remained at Fort Benning for his first permanent duty assignment.

The applicant’s 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-2. However, there is a recorded history of disciplinary infractions.

On 1 October 1973 the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for two violations of Article 86 and violation of Article 92 as follows: in that, on 24 September 1973, he did without authority fail to go to his appointed place of duty; in that, on 17 September 1973 having knowledge of a lawful order did disobey the same; and that on 22 September 1973 he did without authority fail to go to his appointed place of duty. His punishment for these offenses included: forfeiture of $70.00; reduction to private/E-1; 7 days restriction; and
7 days of extra duty.

On 12 December 1973 he again accepted an NJP for violation of Article 91, in that on 24 November 1974, having knowledge of a lawful order did willfully disobey the same. His resultant punishment included forfeiture of $71.00, 14 days of restriction, and 14 days of extra duty.

On 21 February 1974 the applicant accepted a third NJP for violation of Article 90 for willfully disobeying an order from a superior commissioned officer on 8 February 1974. His punishment for this incident was a forfeiture of $25.00.

The evidence of record indicates that on 19 June 1974 a
DD Form 458 (Charge Sheet) was prepared preferring a charge against the applicant for violation of Article 86 for a period of AWOL from 25 February 1974 through 14 June 1974.

The record also contains documented evidence that on
20 June 1974 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 6 August 1974 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD. Accordingly, on 20 August 1974 the applicant was discharged after completing 1 year, 5 months, and 3 days of active military service and accruing 109 days of time lost due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of 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, and applicable law and regulations, it is concluded:

1. The Board found no evidence of record or independent evidence submitted by the applicant which supported his contention that a disagreement with a lieutenant was so significant it impaired his ability to serve and was the cause for his AWOL. The evidence of record is clear, and shows 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.

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

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