MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:  BOARD DATE: 24 June 1998
         DOCKET NUMBER: AC97-09665

         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:

Ms.	Karen J. Newsome		Chairperson
Mr.	Robert W. Garrett		Member
Mr.	James P. Huber		Member

         Also present, without vote, were:

Mr.	Loren G. Harrell		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)

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APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

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

On 25 July 1967 the applicant was inducted into the Army of the United States for 2 years at the age of 19. He successfully completed basic training and advanced individual training (AIT) at Fort Polk, Louisiana. Upon completion of AIT he was assigned to overseas service in Vietnam for his first duty station.

The applicant’s record indicates he completed his combat tour in Vietnam for which he earned the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. The record also indicates that he attained the rank of specialist/E-4 on 8 May 1968. The record documents no other acts of valor, achievement; or service warranting special recognition. However, the record does contain an extensive history of disciplinary infractions which includes the applicant undergoing a trial by summary court-martial, and his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on four separate occasions.

On 2 November 1967 the applicant accepted an NJP for disobeying a lawful order and going from his appointed place of duty without proper authority on
30 October 1967. His punishment for these offenses was forfeiture of $11.00 and 14 days of restriction and extra duty.

On 6 November 1967 the applicant accepted a second NJP for breaking restriction on 4 November 1967 and for being AWOL from 4 to 5 November 1967. The resultant punishment was an oral reprimand; forfeiture of $25.00 per month for 2 months; and 30 days of restriction and extra duty.

On 24 September 1968 the applicant accepted his third NJP for disobeying a lawful order from a superior officer on 22 September 1968. He was punished with a forfeiture of $20.00 and 14 days of restriction and extra duty; and on
3 March 1969 he accepted his last NJP for being AWOL from 1 to 2 March 1969. His punishment included a forfeiture of $44.00 and 14 days extra duty.

On 28 April 1969 the applicant was tried by summary court-martial on two charges for violations of Articles 86 and 92 of the UCMJ. The first charge was for being AWOL from 7 to 8 April 1969. The second charge was for disobeying an order from a superior noncommissioned officer on 11 April 1969. The applicant was found guilty of both charges and sentenced to perform hard labor without confinement for 30 days and to be reduced in rank to private/E-1.

The applicant went AWOL from his unit at Fort Hood, Texas on 9 June 1969, was dropped from the rolls as a deserter on 9 July 1969, and was apprehended by civil authorities and returned to military control on 14 August 1969. On
15 August 1969 the applicant again went AWOL, from the Personnel Control Facility at Fort Hood, Texas, and remained absent in a desertion status until again being apprehended by civil authorities on 16 May 1974.

The evidence of record indicates that on 24 May 1974 a DD Form 458
(Charge Sheet) was prepared preferring a court-martial charge against the applicant for two specifications of violation of Article 86 of the UCMJ, for the AWOL periods outlined in the proceeding paragraph. The record also contains documented evidence that on 30 May 1974 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 Veterans Administration and that he may be deprived of veterans benefits under state and federal law.

On 10 June 1974 the appropriate authority approved the applicant’s request for discharge and directed a UD be issued. Accordingly, on 13 June 1974 the applicant was discharged after completing 1 years, 11 months, and 12 days of credible active service, and accruing 1803 days of time lost due to AWOL and confinement.

There is no evidence that the applicant applied to the Army Discharge Review Board for an 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 for soldiers separating under this chapter. 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 carefully examined the applicant’s record of service during the period of enlistment under review. However, the evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The Board noted that, after consulting with defense 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. It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting 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