MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 

	BOARD DATE:             3 June 1998                
	DOCKET NUMBER:     AC97-10191

	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 an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was in the Army almost the full duration of his enlistment and went AWOL to resolve problems with his pregnant girl friend.

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

On 29 September 1973 the applicant entered the Regular Army for a period of  
3 years and a unit of choice assignment at Fort Knox, Kentucky.  He successfully completed basic and advanced individual training (AIT) at Fort Knox.  Upon completion of training he was awarded military occupational specialty 11D (Ammunition Handler), and remained at Fort Knox, under the terms of his enlistment option.

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 first class/E-3.  However, there is a record of repeated AWOL related disciplinary infractions which include the applicant being tried by special court-martial on two separate occasions; in addition, there is a documented total of 326 days of time lost consisting of six different periods of AWOL, and a period of military confinement.

On 20 March 1975 the applicant was tried by special court-martial for violation of Article 86 for being AWOL from 26 November 1974 to 11 February 1975.  He was found guilty of the charge and sentenced to forfeit $100.00 per month for 
2 months; to be reduced to private/E-2; and to 45 days of restriction and extra duty.

On 13 February 1976 the applicant was again tried by special court-martial for violation of Article 86 for two specifications of AWOL.  The first specification was for being AWOL from 17 to 20 August 1975, and the second specification was for being AWOL from 21 August to 31 December 1975.  The applicant was found guilty and sentenced to a forfeiture of $100.00 per month for 3 months; to be reduced to private/E-1; and to 3 months of confinement at hard labor.

On 31 March 1976 a court-martial charge was preferred against the applicant for violation of Article 86 with two specifications of AWOL.  The first specification was for being AWOL from 9 to 11 February 1976; and the second specification was for being AWOL from 11 February to 19 March 1976. 


The evidence of record documents that 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 the 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 12 April 1976 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD.  Accordingly, on 5 May 1976 the applicant was discharged after completing 1 year, 8 months, and 15 days of active military service, and accruing 326 days of time lost due to AWOL and confinement.

On 14 February 1978 the Army Discharge Review Board denied the applicant’s request for an upgrade to his discharge and found the discharge process was proper in all respects.

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 noted the applicant’s contentions that his marital problems were the reasons for his AWOL and that he had served honorably for the majority of his service commitment prior to his discharge.  However, in view of the applicant’s overall record of service, the Board determined these factors were not sufficiently mitigating to warrant an upgrade of the applicant’s discharge.

2.  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, and attested to his understanding of the possible loss of veterans benefits based on receiving a UD.

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