MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 June 2002
         DOCKET NUMBER: AR2002067929

         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.

Mr. Carl W. S. Chun		Director
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Allen L. Raub		Member

         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: That his undesirable discharge be upgraded to fully honorable, and that the three non-pay periods (lost time) shown on his DD Form 214 be deleted.

APPLICANT STATES: That his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, shows that he had three periods of being Absent Without Leave (AWOL). He contends that he was not AWOL on any of those three occasions. He explains that during the first period, from 17 through 24 March 1971, he was on guard duty. He remembers that very well because his brother died during that time, and he was not allowed to go on leave until after he completed his guard duty. As for the second period, 8 August through 4 December 1972, he was offered an early out on the first of August. When he accepted the early out he was under the impression he was released from active duty. When he received a letter telling him he was AWOL he immediately turned himself in and he was placed in the stockade. That leads to his third non-pay period, 8 through 12 December 1972. He was not AWOL during that period. He was incarcerated in the stockade as a result of his prior period of AWOL. The applicant contends that he was young, didn’t understand the military system, and made mistakes in his interpretation of what he was supposed to do. He maintains that he should have been counseled concerning his responsibilities and allowed to correct his mistakes, not be branded with an undesirable discharge.

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

He enlisted in the Regular Army on 22 February 1971 and was awarded the military occupational specialty of light weapons infantryman.

On 17 March 1971 the applicant was arrested by civil authorities and was confined through 24 March 1971.

On 30 November 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for not having a military haircut.

On 29 March 1972, the applicant again accepted NJP for failure to go at the time prescribed to his appointed place of duty.

On 19 December 1972, court-martial charges were preferred against the applicant for being AWOL from 8 August to 5 December 1972.

After his return to a duty status, the applicant expressed a desire to be discharged in lieu of court-martial for the good of the service. As a result, a member of the Judge Advocate General Corps sent him a letter acknowledging his request, explaining what a discharge for the good of the service entailed, explaining what his rights were in conjunction with his request, telling him that if his request was accepted he could expect to receive a undesirable discharge, and providing him the number of undesirable discharges upgraded by both the Army Discharge Review Board (ADRB) and this Board, by year, between 1966 and 1969. The applicant responded in writing stating, “I feel the Army is useless for me and I don’t want a thing to do with it. I feel the sooner I get my discharge the better. I would not do anything for the service. A dishonorable discharge does not matter to me. My last commanding officers have stated in my last Chapter 10 I put in for that I have shown no desire to rehabilitate and serve honorably and I won’t as long as I am in the service.”

The applicant’s request was approved and he was furnished an Undesirable Discharge Certificate on 18 January 1973. The DD Form 214 he was issued shows that he had 1 year, 6 months and 6 days of creditable service. This form also shows that he had the following non-pay periods: 17 through 24 March 1971; 8 August through 4 December 1972; and 8 through 12 December 1972.

On 8 June 1973, the applicant submitted a request to upgrade his discharge. In that request he stated that in May 1972, he and his wife were having problems and she wanted to leave him. When he told his first sergeant about his marital problems, his first sergeant told him that it was his problem and the service came first. On 20 November 1973, his request was denied by the ADRB.

The applicant submitted a request for reconsideration of the ADRB’s denial of his original request for upgrade on 19 January 1976. In that request he added that when he was having marital difficulties with his wife, his commander had him bring her in to talk with him. His wife later told him that his commander propositioned her when they were talking. The ADRB denied that request on 27 October 1977.

The Department of Defense Pay Manual, Table 1-1-2, Rule 8, states that a period of absence is not creditable when the absence is because of confinement for more than one day (24 consecutive hours) while awaiting trial (if the trial results in conviction) or confinement as the result of the court-martial sentence. In addition, Rule 2 of this table states that unauthorized absence of more than 1 day is not creditable service. This precludes any pay and allowances for a period of AWOL of over 1 day.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. The applicant states that he wasn’t AWOL in March 1971. He is correct. He was confined by civil authorities. However, incarceration is considered lost time unless the soldier is subsequently determined not guilty. Since there is no indication of the disposition of the arrest, the Board must presume regularity.

2. The applicant’s explanation for his second period of lost time is not accepted by the Board. Court-martial charges were preferred against him for that absence, and he requested discharge in lieu of trial by court-martial. It would appear reasonable if his absence was due to a misconception, the applicant would have accepted the court-martial. Instead, he stated that he did not have any desire to remain in the service, that he wouldn’t perform his duties if he was forced to remain in the service, and that he would accept a dishonorable discharge to get out of the service. As such, the Board accepts that non-pay period as valid.

3. The applicant’s last period of lost time was for when he was incarcerated awaiting trial by court-martial. By law and regulation, that is also lost time.

4. As for upgrading the applicant’s discharge, two NJP’s, one civilian arrest and incarceration, and 141 days of AWOL are more than sufficient to warrant an undesirable discharge. The applicant has not submitted any matters of equity which would cause the Board to recommend changing his properly issued undesirable discharge.

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

__mm___ ___alr___ ___kak __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002067929
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020618
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	A71.00
2.	123.00
3.
4.
5.
6.