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ARMY | BCMR | CY1997 | 9710372
Original file (9710372.rtf) Auto-classification: Denied

MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:  BOARD DATE: 4 March 1998
         DOCKET NUMBER: AC97-10372

         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. Karen J. Newsome Chairperson
Mr. Raymond V. O’Connor Jr. Member
Ms. Margaret K. Patterson Member

         Also present, without vote, were:
Mr. Karl F. Schneider Acting 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)

APPLICANT REQUESTS

: In effect, that his undesirable discharge (UD) be upgraded to honorable (HD).
APPLICANT STATES : In effect, that the reason he went AWOL was because he could not deal with the regiment of service life; that he doesn’t think he deserves this type of discharge; and that subsequent to leaving the service he has had no trouble with the law and has always held a full time job. Included in the applicant’s request are two character references from supervisors attesting to his good work habits.

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

On 15 April 1970 the applicant was inducted into the Army of the United States for a period of 2 years at age 20. The applicant successfully completed basic training at Fort Campbell, Kentucky and was assigned to Fort Carson, Colorado for his first permanent duty station.

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 disciplinary infractions.

On 7 July 1970 the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, UCMJ, for violation of Article 86 (AWOL for the period 21 June through 3 July 1970). His punishment for this offense included: forfeiture of $29.00; and 14 days of restriction and extra duty.

On 8 February 1971 he accepted an NJP for violation of Article 86 (AWOL for the period 4 February through 6 February 1971) for which he received the following punishment: forfeiture of $20.00; and 5 days restriction and extra duty.

On 17 February 1971 he accepted another NJP for two specifications of violating Article 86 (missing Guard Mount on 16 and 17 February 1971). The resultant punishment for these offenses included reduction to the rank of private
/E-1, forfeiture of $25.00, extra duty for 14 days, and restriction for 7 days.

 The evidence of record indicates that on 16 December 1971
a DD Form 458 (Charge Sheet) was prepared preferring a charge against the applicant which included two specifications of violation of Article 86 (AWOL) of the UCMJ. The first specification was for a period of AWOL between 16 August and 10 December 1971. The second specification was for a period of AWOL between 16 June and 22 July 1971.

The record also contains documented evidence that on
10 January 1972 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. The applicant also stated that under no circumstances did he desire to perform further military service.

On 28 January 1971 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD. Accordingly, on 25 March 1969 the applicant was discharged after completing 1 year, 4 months, and 2 days of active military service, and accruing 173 days of time lost due to AWOL.

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 acknowledges the applicant’s post service good conduct. However, after carefully reviewing the applicant’s entire service record, the Board did not find said conduct sufficiently mitigating to 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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