MEMORANDUM OF CONSIDERATION


IN THE CASE OF:

         BOARD DATE: 29 July 1998
         DOCKET NUMBER: AC97-11415

         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:

Mr.	Fred K. McCoy		Chairperson
Ms.	Margaret K. Patterson		Member
Mr.	George D. Paxson		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 to an honorable discharge (HD).

APPLICANT STATES: In effect, that the discharge should be upgraded in the interest of justice; that he had been instilled with family values from an early age and his decision to go AWOL was based on those values; and that his military records show that he was a good soldier throughout his enlistment.

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

On 2 August 1968 the applicant entered the Regular Army for a period of 3 years at the age of 18. The applicant successfully completed basic training at Fort Gordon, Georgia, advanced individual training (AIT), and the noncommissioned officer’s (NCO) armor advance course at Fort Knox, Kentucky. Upon completion of training the applicant was promoted to sergeant/E-5; awarded military occupational specialty (MOS) 11E40 (Armor Crew NCO); and was assigned to the overseas replacement station, Oakland, California, enroute for ultimate assignment in Vietnam.

The record documents no individual acts of valor, achievement, or service warranting special recognition, other than the applicant’s selection and attendance at the armor advanced NCO course and accelerated promotion. However, the record contains an extensive history of repeated AWOL related disciplinary infractions.

The applicant’s first AWOL incident began on 8 July 1969 when he failed to report to the overseas replacement station at Oakland, California for further assignment to Vietnam. He remained AWOL until 25 August 1969 when he was returned to military control at Fort Dix, New Jersey. The applicant again went AWOL from Fort Dix, New Jersey on 8 September 1969 and was dropped from the rolls as a deserter on 9 October 1969, and remained away until 6 March 1973.

The evidence of record indicates that on 8 March 1973 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 his period of AWOL from 8 September 1969 to 6 March 1973.

The record also contains documented evidence that on 12 March 1973 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 for discharge 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 Veteran Affairs, and that he may be deprived of veterans benefits under state and federal law.

On 12 March 1973 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 15 March 1973 the applicant was interviewed by the intermediate level commander, who attempted to ascertain the reasons for the applicant’s actions and the feasibility of rehabilitation. In the interview the applicant claimed that family and personal problems were the basis for his actions. The applicant further acknowledged that he was aware that he could have applied for either a compassionate reassignment or a hardship discharge based on his family problems; however, he did not believe his circumstances warranted approval, so he instead choose to go AWOL. The intermediate level commander concluded that that the applicant’s poor attitude toward military service prohibited further attempts at rehabilitation. He further recommended approval of the applicant’s request for discharge, and concurred with the unit commander that a UD was appropriate.

On 22 March 1973 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD. Accordingly, on 19 April 1973 the applicant was discharged after completing 1 year, 2 months, and 2 days of credible service, and accruing 1,318 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 acknowledges the applicant's successful transition to civilian life and noted the many accomplishments outlined in the documents enclosed with his application. However, the Board concluded that the applicant’s contentions that his commitment to family values; his otherwise good military record; and his post service good citizenship were not sufficiently mitigating to warrant an upgrade to his discharge. The applicant admitted, in a discharge interview, that he was aware of other avenues to address his family problems but choose not to pursue them, and instead decided to go AWOL. The applicant also made clear he understood the ramifications of a UD and still expressed his strong desire to be discharged.

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. 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




                                                      Loren G. Harrell
                                                      Director