MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 
	

	BOARD DATE:            24 November 1998
	DOCKET NUMBER:   AC97-10636

	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. 



Member

	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:  That his undesirable discharge be upgraded to a general discharge.

APPLICANT STATES:  That he went AWOL because his pay records were messed up and he had a wife and a child to support so he took a job.

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

The applicant was single when he enlisted in Seattle, Washington on 4 February 1969 for a period of 3 years.  He successfully completed his training and was transferred to Vietnam on 9 July 1969 as a light weapons infantryman.

He remained in Vietnam until 5 July 1970 when he was transferred to Fort Carson, Colorado.  The applicant was awarded the Combat Infantryman Badge, the Purple Heart, the Air Medal, the Army Commendation Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal for his service in Vietnam.

On 25 September 1970, while serving in the pay grade of E-5, he reenlisted for a period of 3 years.

The applicant’s records show that he went AWOL from 26 October to 30 October 1970 and that nonjudicial punishment (NJP) was imposed against him which reduced him to the pay grade of E-4.

His records also show that on 13 November 1970, when he updated his record of emergency data, he was still single.

On 28 December 1970, NJP was imposed against him for being AWOL from 22 December to 23 December 1970.

On 14 January 1971, NJP was again imposed against him for being AWOL from 12 to 13 January 1971.

The applicant again went AWOL from 17 February to 25 February 1971, from 3 March to 29 March 1971, and from 1 April to 4 April 1971.  He was convicted by a special court-martial on 20 April 1971 and was sentenced to be confined at hard labor for 3 months, reduced to the pay grade of E-1, and a forfeiture of pay. The convening authority approved the sentence but suspended the forfeiture of pay.

On 28 June 1971 the unserved portion of his sentence pertaining to confinement was suspended and he was returned to his unit.  He again went AWOL from 16 August to 18 August and from 23 August until 21 December 1971.  

The complete facts and circumstances are not present in the available records.  However, the available records show that the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and his battalion commander recommended that he instead be tried by a special court-martial.

The appropriate authority approved his request on 21 January 1972 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 28 January 1972 under the provisions of Army Regulation 635-200, for the good of the service in lieu of trail by court-martial.  He had served 2 years, 2 months, and 6 days of total active service and had 294 days of lost time due to AWOL and confinement.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  However, because he failed to apply within that board’s 15-year statute of limitations, this Board accepted his application in lieu of a DD Form 149. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been 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.

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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by  court-martial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate considering all of the facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, the evidence submitted with his application and the evidence of record fail to support his contentions.  His records clearly show that he established a pattern of AWOL before he ever got married. 

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

___gp___  ___rwg__  ___cla___  DENY APPLICATION




						Loren G. Harrell
						Director