MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 April 2002
         DOCKET NUMBER: AR2002068610

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. George D. Paxson		Member
Mr. Charles Gainor		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)

---

APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded.

APPLICANT STATES: In effect, that he tried to get his discharge upgraded during the amnesty program in the mid to late 1970’s and was turned down because the person on the phone did not think his discharge fell within the Vietnam era, which he believes it did. He concludes that he has lived with the embarrassment of having a bad discharge for years because of some mistakes he made as a kid.

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

On 11 August 1972, he enlisted in the Regular Army for 5 years. In October 1972, he completed basic training at Fort Ord, California, and remained there to attend advanced individual training (AIT).

The applicant’s record confirms that he never advanced beyond the rank of private/E-1 during his active duty tenure and it documents no acts of valor, significant achievement, or service warranting special recognition. However, the record does contain an extensive disciplinary history, which includes his trial and conviction by a special court-martial.

On 20 November 1972, the applicant departed absent without leave (AWOL) from his AIT unit at Fort Ord. He remained away for 111 days until returning to military control on 10 March 1973, at Fort Lewis, Washington. On 20 April 1973, he was found guilty of this AWOL offense by a special court-martial and the resultant sentence included confinement at hard labor for 3 months, of which that portion in excess of 30 days was suspended, and a forfeiture of $200.00 of pay per month for 3 months.

Upon completing his confinement, he was reassigned back to Fort Ord to resume training. On 25 May 1973, after failing to report to his unit at Fort Ord, he was again declared AWOL. He remained away for 128 days until returning to military control at Fort Lewis on 28 September 1973.

On 3 October 1973, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for being AWOL from 25 May through 28 September 1973.

---

On 12 October 1973, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, which could lead to a bad conduct discharge. Counsel also advised the applicant of the effects of an UD and of the rights available to him, after which the applicant voluntarily requested discharge, for the good of the service/in lieu of trial by court-martial. In his request for discharge, the applicant acknowledged his understanding that he would be deprived of many or all Army benefits, that he would be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

On 31 October 1973, the appropriate authority approved the applicant’s request for discharge and directed that he receive an UD, and that he be reduced to the lowest enlisted grade.

On 18 December 1973, the applicant was discharged accordingly. The separation document (DD Form 214) issued to and authenticated by the applicant on the date of his separation confirms that he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by court-martial. At the time of his separation, he had completed a total of just 3 months and 11 days of creditable active military service and he had accrued a total of 392 days of time lost due to AWOL and confinement.

On 9 June 1976, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge after determining that he had been properly discharged.

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 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. However, at the time of the applicant's separation the regulation provided for the issuance of an 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 notes the applicant’s contention that he has lived with the mistakes he made in his youth long enough and his request that his discharge be upgraded. However, it finds these factors are not sufficiently mitigating to warrant the requested relief.

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 notes that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.

3. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process and that the character of his discharge accurately reflects his overall record of relatively short and undistinguished service.

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 this 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

JHL GDP CG DENY APPLICATION

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

---

INDEX

CASE ID	AR2002068610
SUFFIX
RECON
DATE BOARDED	2002/04/25
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1973/12/18
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.