MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:

         BOARD DATE: 8 July 1998
         DOCKET NUMBER: AC97-10214

         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 the his undesirable discharge (UD) be upgraded.

APPLICANT STATES: In effect, that he needs his discharge upgraded so that the Immigration Naturalization Service (INS) will dismiss a case against him.

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

On 3 November 1973 the applicant enlisted in the New York State Army National Guard for 6 years at the age of 17. He successfully completed his initial active duty for training (IADT) by completing basic training at Fort Dix, New Jersey and advanced individual training (AIT) at Aberdeen Proving Ground, Maryland. Upon completion of AIT he was awarded military occupational specialty 44C (Welder) and returned to his National Guard unit in Brooklyn, New York for duty.

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 three separate occasions during his IADT; and an extended period of AWOL which ultimately lead to his discharge.

On 4 February 1974 the applicant, while still in basic training, accepted an NJP for sleeping on guard post for which he was punished with a forfeiture of $76.00; 14 days of extra duty; and 7 days of restriction. On 8 May 1974 the applicant accepted another NJP, while in AIT, for being absent from his place of duty on
7 May 1974; his punishment for this offense included a forfeiture of $75.00 and 14 days of restriction and extra duty. On 10 June 1974 he accepted his last NJP for failing to go to his prescribed place of duty on 9 June 1974. The resultant punishment for this offense was a forfeiture of $50.00 and 5 days of restriction and extra duty.

The applicant was involuntarily ordered to active duty, under the provisions of Army Regulation 135-91, based on his unsatisfactory performance in the National Guard. The applicant failed to report for active duty and entered an AWOL status effective 14 October 1975.

The evidence of record indicates that on 9 November 1976 a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant, for violation of Article 86 of the UCMJ, for being AWOL from
14 October 1975 to 8 November 1976.

The record also contains documented evidence that on 12 November 1976 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 17 November 1976 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
22 November 1976 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD. Accordingly, on 30 November 1976 the applicant was discharged after completing 2 years and 4 days of credible service and accruing 390 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 Board concluded that the issue raised by the applicant is not a matter on which the Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion relating to the discharge process nor is it associated with the discharge at the time of issuance.

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. 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