MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 4 March 1998
DOCKET NUMBER: AC97-09944
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:
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).
EVIDENCE OF RECORD: The applicant's military records show:
On 9 April 1971 the applicant enlisted in the Regular Army for a period of 3 years at 27 years of age. He successfully completed basic training (BT) at Fort Dix, New Jersey and advanced individual training (AIT) at Fort Benning, Georgia. Upon completion of AIT he was awarded military occupational specialty (MOS) 31B (Field Radio Mechanic).
The applicant's record is void of any significant acts of achievement, valor, or service meriting special recognition. However, there is an extensive record of AWOL disciplinary infractions.
On 17 October 1971, shortly after completing AIT, rather than reporting to his first permanent duty assignment at Fort Hood, Texas, he began his first incident of AWOL. He remained in that status until 14 November 1971. His second period of AWOL began on 20 November 1971 and ended on
5 January 1972.
The evidence of record indicates that on 23 January 1973
a DD Form 458 (Charge Sheet) was prepared preferring a charge against the applicant for violation of Article 86 (AWOL) of the UCMJ, for a period of AWOL between 6 March 1972 through
18 January 1973
The record also contains documented evidence that on
30 January 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 Veterans Affairs, and that he may be deprived of veterans benefits under state and federal law.
On 15 March 1973 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD. Accordingly, on 3 April 1973 the applicant was discharged after completing 10 months and 28 days of active military service, and accruing 395 days of time lost due to AWOL.
On 11 June 1979 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, and advisory opinion(s), it is concluded:
1. The Board acknowledges the applicants desire to have his discharge upgraded. However, after carefully reviewing the applicants entire service record, the Board did not find any evidence of sufficiently mitigating factors which would 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
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