| Mr. Carl W. S. Chun | Director | |
| Mr. Joseph A. Adriance | Analyst |
| Mr. Arthur A. Omartian | Chairperson | ||
| Ms. Karen A. Heinz | Member | ||
| Mr. Thomas Lanyi | Member |
APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge.
EVIDENCE OF RECORD: The applicant's military records show:
On 14 November 1972, the applicant enlisted in the Regular Army for 4 years and entered active duty. He successfully completed basic combat at Fort Ord, California, and advanced individual training (AIT) at Fort Bliss, Texas. Upon completion of AIT, he was awarded military occupational specialty (MOS)
11D (Armor Reconnaissance Specialist), and he remained at Fort Bliss for his first permanent duty assignment.
The applicant’s record confirms that the highest rank he held while serving on active duty was private/E-2. It documents no acts of valor, significant achievement, or service warranting special recognition. However, it does contain an extensive absent without leave (AWOL) related disciplinary history. This includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).
On 26 October 1973, the applicant accepted NJP for being AWOL for 18 days between 1 and 19 October 1973. His punishment for this offense included a reduction to private/E-1, a forfeiture of $163.00 of pay per month for two months, all in excess of $100.00 pay per month for one month suspended, and 45 days of extra duty. On 14 February 1974, the suspended portion of this punishment was vacated.
On 4 March 1974, the applicant departed AWOL from his unit at Fort Bliss, Texas. He remained away for 179 days, until returning to military control at Fort Hood, Texas, on 30 August 1974. On 4 September 1974, a court-martial charge sheet (DD Form 458) was prepared that preferred a court-martial charge against the applicant for this period of AWOL.
On 5 September 1974, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ. He was also advised of the possible effects of an UD, and of the procedures and rights available to him. Once counseled, he 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 guilt of the charge against him. He also stated that under no circumstances did he desire further rehabilitation and that he had no desire to perform further military service. He also 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 13 September 1974, the appropriate authority approved the applicant’s request for discharge and directed that he receive an UD. On 16 April 1970, he 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 1 year, 3 month, and 23 days of creditable active military service, and he had accrued a total of 197 days of time lost due to AWOL.
There is no evidence to show that the applicant applied to the Army Discharge Review Board to request an upgrade to his discharge 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. 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 request that his discharge be upgraded to a GD. However, it finds an insufficient propriety or equity basis to support this requested relief.
2. The evidence of record shows the applicant was charged with the commission of an offense punishable under the 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 service. Therefore, the Board concludes that the requested relief is not warranted.
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
__AAO__ __KAH___ ___TL___ DENY APPLICATION
| CASE ID | AR2002073397 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2002/07/30 |
| TYPE OF DISCHARGE | UD |
| DATE OF DISCHARGE | 1974/09/19 |
| 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. |
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