MEMORANDUM OF CONSIDERATION


         IN THE CASE OF

         BOARD DATE:
         DOCKET NUMBER: AC97-11615

         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.			Chairperson
Mr.			Member
Mr.			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.

APPLICANT STATES: In effect, that counsel did render legally accurate advise at conference before agreement to accept UD; that events prior to AWOL were above typical conditions of service; that he is committed to family & community as evidenced with extensive volunteer service; that his conduct since discharge has improved and needs to be reflected in status; and that he does not believe a UD would have occurred under current standards because more weight would be applied to family conditions.

COUNSEL CONTENDS: Counsel provided no additional contentions; however, he did forward the application on behalf of the applicant, and is on record as his representative.

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

On 16 April 1973 the applicant entered the Regular Army for a period of 3 years at the age of 19. He successfully completed basic training at Fort Polk, Louisiana and attended advanced individual training (AIT) at Fort McClellan, Alabama. Upon completion of AIT the applicant was awarded military occupational specialty (MOS) 84G (Photo Lab Specialist) and assigned to overseas duty in Germany for his permanent duty station.

The applicant’s record indicates the highest grade he held on active duty was private first class/E-3. The record documents no individual acts of valor, achievement, or service warranting special recognition. However, there is an extensive recorded disciplinary history which includes the applicant undergoing a trial by special court-martial, and his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on two separate occasions.

On 9 January 1974 the applicant accepted an NJP for being AWOL from 7 to
9 January 1974. His punishment for this offense was a reduction to private/E-1 (suspended), and a forfeiture of $76.00.

On 6 August 1974 the applicant was tried by special court-martial for violation of Article 86 for being AWOL from 23 June to 17 July 1974. The applicant plead and was found guilty of the charge and sentenced to be reduced to the rank of private/E-1; forfeiture of $35.00 per month for 3 months; and 30 days restriction.

On 9 June 1975 the applicant accepted another NJP for willfully disobeying a lawful order. The resultant punishment included a reduction to private/E-2 (suspended), and 14 days of extra duty.

The evidence of record indicates that on 31 October 1975 a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violation of Article 86 of the UCMJ. The charge contained two specifications: the first specification was for an AWOL period from 8 to
29 October 1975; and the second specification was for a second AWOL period from 30 September to 7 October 1975.

The record also contains documented evidence that on 6 November 1975 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. The applicant’s request was made only after he had been advised, by his appointed military counsel, of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; of the possible effects of a UD if the request were approved; and of the procedures and rights available to him. In his request the applicant attested to the fact that the request was being made of his own free will; that he had not been subjected to coercion whatsoever by any person. He further stated that he had been advised of the implications attached to the action; that he understood the elements of the offense charged and that he was guilty of the charge against him, or of a lesser included offense, which authorized the imposition of a bad conduct or dishonorable discharge. The applicant also acknowledged 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; that he may be deprived of veterans benefits under state and federal law; and that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service. As part of his request for discharge the applicant submitted a statement in his own behalf. In the statement he indicated, in effect, that he had been in the Army for two and a half years and had been trying to obtain a discharge for the entire period. The applicant cited family problems and criticism based on his marriage to black as the reasons for his repeated AWOL’s. He concluded by indicating that he thought his on duty performance was good and that it was ironic that he had to be treated like a criminal because he could not adjust to military life.

On 13 November 1975 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 14 November 1975 the intermediate level commander recommended approval of the applicant’s request and that he be issued a UD,

On 17 November 1975 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD. Accordingly, on
26 February 1976 the applicant was discharged after completing 2 years,
8 months and 12 days of military service.

On 19 May 1978 the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge and found that 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, applicable law and regulations, it is concluded:

1. The Board concurs with the findings and conclusions of the ADRB and presumes that the applicant's administrative separation was accomplished in compliance with applicable regulations. There is no indication of procedural errors by the ADRB which would tend to have substantially jeopardized the applicant's rights.

2. The contentions of the applicant and his counsel have been noted by the Board. However, they are not supported by either evidence submitted with the application or the evidence of record. The discharge process was in accordance with applicable law and regulations and the applicant's service was appropriately characterized. The applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. He was afforded all rights associated with the action and voluntarily, in writing, requested separation from the Army in lieu of trial by court-martial. Although he may now feel that he made the wrong choice, the record indicates that at the time the applicant clearly desired discharge which had been his goal since entering the Army, and the Board concluded he should not be allowed to change his mind at this late date.
3. The Board found no evidence to corroborate the applicant’s contentions that he received inadequate counsel; or that he was serving under conditions that were beyond normal requirements of service. The evidence of record shows the applicant voluntarily requested a chapter 10 discharge, only after appropriate and proper consultation with a military lawyer, which shows he wished to avoid the court-martial and the punitive discharge that he might have received. The Board determined the applicant chose to request an administrative discharge rather than risk the consequences of a court-martial.

4. While the Board is empathetic, the applicant's personal problems are not sufficiently mitigating to warrant an upgrade of his discharge. Additionally, the applicant’s post service good conduct, while commendable, is not a matter on which the Board chose to grant a change in discharge. These issues raise 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.

5. 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.

6. 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