MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 August 2002
         DOCKET NUMBER: AR2002073226

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Ms. Paula Mokulis		Member
Mr. Donald P. Hupman		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 honorable.

APPLICANT STATES: In effect, that he had already served one enlistment and two years of his second enlistment when, due to a misunderstanding with the officer involved, he agreed to an undesirable discharge for being unable to adapt to military life. He contends that he had already served a total of 3 years,
7 months and 28 days. In support of his application, he submits a DD Form 214 (Report of Transfer or Discharge) with an effective date of 27 December 1972 and a DD Form 214 (Report of Separation from Active Duty) with an effective date of 22 May 1975.

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

The applicant enlisted on 30 April 1971 for a period of 2 years.

While in basic combat training, on 18 June 1971, nonjudicial punishment was imposed against the applicant for assault. His punishment consisted of a forfeiture of pay, restriction, and extra duty.

On 22 November 1971, nonjudicial punishment was imposed against the applicant for failure to go at the time prescribed to his appointed place of duty. His punishment consisted of a forfeiture of pay, restriction, and extra duty.

The applicant was honorably discharged on 27 December 1972 for immediate reenlistment. He reenlisted on 28 December 1972 for a period of 6 years.

On 4 February 1974, nonjudicial punishment was imposed against the applicant for disobeying a lawful order and using disrespectful language toward a sergeant first class. His punishment consisted of a reduction to E-3 (suspended until
4 April 1974) and extra duty. On 12 February 1974, the suspended portion of the applicant’s sentence (reduction to E-3) was vacated.

On 5 March 1974, nonjudicial punishment was imposed against the applicant for failing to obey two lawful orders and for behaving with disrespect toward a superior commissioned officer. His punishment consisted of a reduction to E-2 (suspended for 1 month), restriction, and extra duty.

On 30 April 1974, nonjudicial punishment was imposed against the applicant for using provoking words toward a specialist five and for being derelict in the performance of his duties. His punishment consisted of a reduction to E-2, a forfeiture of pay, and extra duty. The applicant’s appeal was denied on 13 May 1974.

On 26 July 1974, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 9 July 1974 to 15 July 1974. He was sentenced to be confined at hard labor for 2 months and to be reduced to E-1. On 5 August 1974, the convening authority approved the sentence.

The applicant’s DA Form 2-1 (Personnel Qualification Record) and DD Form 214 with an effective date of 22 May 1975 show that he was AWOL from 13 January 1975 to 3 April 1975.

The facts and circumstances surrounding the applicant’s discharge are not contained in the available records; however, his records show that he was discharged on 22 May 1975 with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served 3 years, 7 months and 28 days of total active service with 147 days of lost time due to AWOL and confinement.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board within its 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 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.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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 considered the applicant’s contention that, due to a misunderstanding with the officer involved, he agreed to an undesirable discharge for being unable to adapt to military life. However, there is no evidence of record available to the Board, and the applicant has provided no evidence, to support this contention.


2. 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.

3. Accordingly, the type of discharge directed and the reasons for separation appear to be appropriate.

4. The Board reviewed the applicant’s record of service for his second enlistment which included three nonjudicial punishments, one special court-martial conviction and 147 days of lost time and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

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 this 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

LLS____ PM______ DPH_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073226
SUFFIX
RECON
DATE BOARDED	20020806
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19750522
DISCHARGE AUTHORITY	AR 635-200 Chapter 10
DISCHARGE REASON	For the good of the service
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.