MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:

         BOARD DATE: 8 July 1998
         DOCKET NUMBER: AC97-09946

         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.	June Hajjar		Chairperson
Mr.	Raymond V. O’Connor Jr.		Member
Ms.	Shirley L. Powell		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.

APPLICANT STATES: In effect, that his ability to serve was impaired by a death in the family; medical problems; drug use; and depression brought on by his inability to deal with racism in Germany; in addition, the applicant claims that he had a clean record and good service.

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

On 14 September 1973 the applicant entered the Regular Army for 3 years at the age of 19. At the time of his enlistment the applicant had completed
4 months of National Guard service and held military occupational specialty 94B (Cook). He entered active duty as a private first class/E-3 and was assigned to Germany for his first active duty station.

The applicant’s record for the period of service under review documents no individual acts of valor, achievement or service warranting special recognition. However, there is a record of disciplinary infractions which includes the applicant’s acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ.

On 13 June 1974 the applicant accepted an NJP for leaving his appointed place of duty without authorization on 8 June 1974. The resultant punishment for this offense was reduction to prviate/E-2 (suspended); forfeiture of $84.00; and
14 days of restriction and extra duty.

The evidence of record indicates that on 17 May 1974 a DD Form 458 (Charge Sheet) was prepared preferring three court-martial charges against the applicant, for violation of Articles 92, 86, and 91 of the UCMJ, with a total of five specifications. The first charge contained three specifications which consisted of carrying a privately owned firearm on 22 April 1974; possessing an unregistered firearm on 22 April 1974; and carrying a privately owned firearm on 20 April 1974. The second charge was for being AWOL from 18 to 25 April 1974, and the third charge was for disobeying a lawful order on 24 April 1974.

The record also contains documented evidence that on 3 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. In addition, the applicant commented that he understood that by making the request he understood the elements of the offenses for which he was charged and admitted his guilt to the charges. Moreover, he stated that under no circumstances did he desire further rehabilitation, because he had no desire to perform further military service. 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 4 June 1974 the applicant’s unit commander recommended approval of the applicant’s request for discharge for the good of the service, in lieu of trial by court-martial and recommended the applicant receive a UD. On 24 June 1974 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD. Accordingly, on 5 July 1974 the applicant was discharged after completing 9 months and 16 days of his current enlistment, a total of 1 year, 1 month, and 23 days of credible service, and accruing 5 days of time lost due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the 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 contentions of the applicant that his ability to serve was impaired by a death in the family; medical problems; drug use; and depression brought on by his inability to deal with racism in Germany, have been noted by the Board. However, there is no corroborating evidence to support that the applicant was the victim of racial prejudice or that his misconduct was the result of his problems. The discharge process was in accordance with applicable law and regulations and the applicant's service was appropriately characterized.



2. 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 legal 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. The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The Board 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.

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