MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 19 December 2002
         DOCKET NUMBER: AR2002076721

         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.	Antoinette Jones-Farley		Analyst

The following members, a quorum, were present:

Mr.	Raymond V. O’Connor, Jr.		Chairperson
Mr.	Stanley Kelley		Member
Mr.	Harry B. Oberg		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 essence, that his undesirable discharge (UD) be upgraded to a general discharge.

APPLICANT STATES: In effect, that he went absent without leave (AWOL), but tried to turn himself in 7 days later. He claims that the Lake Tahoe police did not hold him, based on someone telling them he was on leave. He adds that after another 70 days he turned himself in to the lawyers at Fort Riley, Kansas. He claims that he has tried since 1975 to get his discharge upgraded, but was given a lot of excuses. He states that he does not want any benefits, he just does not want to go to his grave with this type of discharge. Further, he states that he knew he should not have gone AWOL.

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

Prior to the enlistment under review the applicant enlisted in the Regular Army (RA) on 15 December 1971. While in a trainee status, he received an honorable discharge on 10 February 1972, under Army Regulation 635-40, due to a physical disability which existed prior to him entering the service.

On 22 August 1973, he enlisted in the RA for a period of 3 years. He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 91B10 (Medical Corpsman).

On 10 September 1973, the applicant accepted non-judicial (NJP) punishment under Article 15, Uniform Code of Military Justice for violating a lawful general regulation, by having an alcoholic beverage in the barracks on 9 September 1973. His punishment included forfeiture of $70.00 pay and 14 days of restriction to the limits of the company area and extra duty.

On 16 September 1973, the applicant accepted NJP for violating restriction to the limits of the company area on 15 September 1973. His punishment included forfeiture of $50.00 pay.

On 1 August 1974, DA Form 188 (Extract Copy of Morning Report) listed the applicant as AWOL on 2 July 1974. On 17 September 1974, he was returned to military control at Fort Riley, Kansas. On 23 September 1974, his commanding officer recommended that he be tried by Special Court-Martial

On 26 September 1974, court-martial charges were preferred against the applicant for being AWOL from 2 July to 17 September 1974 and his case was referred to Special Court-Martial on 3 October 1974.




On 4 October 1974, the applicant accepted a third NJP for willfully destroying
8 to 10 panes of window glass, property of the United States Government on
3 October 1974. His punishment included reduction to pay grade E-1 and forfeiture of $170.00 pay per month for 2 months, (suspended for 90 days).

The complete discharge packet is not available. However, the available evidence shows that on 4 October 1974, his commanding officer ordered that he receive a physical examination for the purposes of elimination from the service under the provisions of chapter 10, Army Regulation 635-200.

On 9 October 1974, a letter from Headquarters 1^st Infantry Division (MECH), Fort Riley, shows that the applicant had requested a chapter 10 discharge.

On 22 November 1974, the applicant requested a copy of his separation documents explaining the narrative reason for separation from the Army, a narrative description of the authority of his separation and the reenlistment code. His signature appears at the bottom of the document.

On 25 November 1974, the applicant underwent a separation medical examination and acknowledged that there had been no change in his medical condition. His signature appears at the bottom of the document. On the same date the applicant was separated with a UD under the provisions of chapter 10, Army Regulation 635-200. He was credited with 1 year and
17 days of active service. He also had 77 days of lost time.

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 submit a request for a discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Although an honorable or a general discharge is authorized, a UOTHC discharge is normally considered appropriate.

The Manual for Courts-Martial, Table of Maximum Punishments, shows that a
punitive discharge is authorized for any AWOL of more than 30 days.

There is no record that the applicant ever submitted a request for review of his discharge by the Army Discharge Review Board within that board’s 15-year statute of limitations.





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 that the available evidence shows that the applicant voluntarily requested separation under the provisions of Army Regulation
635-200, chapter 10, for the good of the service, to avoid trial by court-martial. The Board also notes that absent evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the available evidence.

2. The appicant’s contentions have been noted; however, he has not convinced the Board of error or injustice in his case, or that his discharge should be upgraded.

3. 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.

4. 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

___RVO_ ___SK __ ___HBO _ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002076721
SUFFIX
RECON
DATE BOARDED	2002.12.19
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	CH 10/UOTHC
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.	A144.0133
2.	A123.00
3.	A 93.01
4.	A 71.00
5.	A 93.09
6.