MEMORANDUM Of CONSIDERATION


	IN THE CASE OF:       

	BOARD DATE:             8 July 1998          
	DOCKET NUMBER:    AC97-09707

	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 to a general/under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that he was not told the type of discharge he would receive; that he was not offered the benefit of counsel; that he was not provided adequate information on which to make an informed decision; that had he understood the full extent of the action he would not have voluntarily signed the request for discharge; and that he would not have accepted a UD without due process.

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

On 20 October 1969 the applicant entered the Regular Army for 3 years at the age of 18.  He successfully completed basic training at Fort Campbell, Kentucky and advanced individual training (AIT) at Fort Sill, Oklahoma.  Upon completion of AIT the applicant was awarded military occupational specialty (MOS) 13A (Cannoneer) and assigned overseas to Germany for his first permanent duty station.

The applicant’s record documents no individual acts of valor, achievement or service warranting special recognition.  However, the record does indicate the applicant had an extensive history of disciplinary infractions which included acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on four separate occasions.

On 28 May 1970 the applicant accepted an NJP for missing bed check.  His punishment for this offense was 10 days of restriction.

On 10 August 1970 the applicant accepted another NJP for larceny of a German National’s motorcycle.  The resultant punishment for this offense included a reduction in rank to private/E-1 (suspended) and a forfeiture of $25.00.

On 14 September 1970 the applicant accepted his third NJP for leaving his guard post.  He was punished with a forfeiture of $ 31.00 and 14 days of restriction and extra duty.

On 14 October 1970 the applicant accepted his last NJP for sleeping on guard duty.  His punishment included a forfeiture of $66.00 per month for 2 months and 45 days of extra duty.



The evidence of record shows the that court-martial charges were preferred against the applicant for the following periods of AWOL:  31 December 1970 to 13 January 1971; 14 to 24 January 1971; and 30 January to 5 February 1971.  The applicant was also charged with one specification of escaping custody.  The record also shows that on 7 April 1971 the applicant consulted counsel, and after being advised of the basis for the contemplated court-martial, elected to voluntarily request discharge for the good of the service, under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial.  The record also documents that the applicant persisted in his desire to get out of the Army with whatever discharge he could get, even after being counseled at length on the ramifications of accepting a UD.  The applicant was fully advised that he would lose many Army benefits and veteran’s benefits afforded under federal and state law, and that he could expect to encounter substantial prejudice in civilian life based on receiving a UD. 

On 12 April 1971 the appropriate authority approved the applicant’s request for discharge and directed the applicant be issued a UD.  Accordingly, on 10 May 1971 the applicant was discharged after completing 1 year, 4 months, and 
18 days of active military service and accruing 64 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 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, applicable law and regulations, it is concluded:

1.  The Board concluded the applicant’s contentions, that he was not afforded proper counsel and that he did not understand the ramifications of his discharge; were unfounded.  The evidence of record clearly shows the applicant was fully advised, by counsel, of the negative aspects of accepting a UD and still persisted in voluntarily requesting discharge.  


2.  The evidence of record documents that the applicant was charged with the commission of an offense punishable, under the provisions of the UCMJ, with a punitive discharge, and that he voluntarily 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.  

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