MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 April 2003
         DOCKET NUMBER: AR2002081041

         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. Richard T. Dunbar		Member
Ms. Yolanda Maldonado		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: In effect, that all record entries pertaining to 9 days of lost time due to pre-trial confinement, and his being dropped from the rolls in June 1972 and March 1973 be removed from all his military records.

APPLICANT STATES: In effect, that there were never any orders published to show that he was placed in pre-trial confinement for the period 14 through
22 June 1972. He also states that he was never charged or convicted of desertion and all allegations that indicate that he was should be removed from his record. He claims that he has reviewed his military records and found numerous mistakes. He states that he was to be discharged with an undesirable discharge (UD), but in reality, he was given an under other than honorable conditions (UOTHC) discharge, and asks if there isn’t a difference in these discharges. He further claims that record shows he was in pre-trial confinement for nine days, but there are no orders showing that he was in confinement. He also states that his Military Personnel Records Jacket (MPRJ) shows that he was dropped from the rolls on two different occasions, but the records also show that he was never charged or convicted of any such charge. He also takes issues with some comments contained in a 15 July 1998 Memorandum of Consideration published by this Board in response to his request to upgrade his discharge, and again claims that the total time lost was incorrect because there were no orders showing he was placed in pre-trial confinement.

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

He initially entered the Army on 29 December 1969, and he was trained in and awarded military occupational specialty (MOS) 64C (Light Truck Driver). On
30 August 1970, while serving at Fort Ord, California, he was honorably discharged for the purpose of immediate reenlistment.

The applicant’s Enlisted Qualification Record (DA Form 20) confirms, in
Item 33 (Appointments and Reductions), that he was promoted to specialist four (SP4) on 7 September 1970, and this was the highest rank he attained while serving on active duty. It also verifies that as a result of accepting nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), the applicant was reduced to the rank of private first class (PFC) on 20 March 1972, and to private/E-2 (PV2) on 19 April 1972. In addition, it reveals that he was reduced to the rank of private/E-1 on 31 July 1972, as a result of a special court-martial conviction.

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Item 44 (Time Lost) of the applicant’s DA Form 20 confirms that he accrued a total of 182 days of time lost for six separate periods of AWOL between
29 November 1971 and 28 May 1973; and for one period of pre-trial confinement from 14 through 22 June 1972. Item 47 (Signature of Individual) contains the applicant’s signature, and it shows that he last audited this record on 6 June 1973. This confirms that he verified that the information on the record was correct at that time, which was less than two months prior to his discharge on
20 July 1973.

The applicant’s MPRJ contains extracts of morning reports (DA Forms 188) from the applicant’s unit, dated 7 June 1972 and 15 March 1973. These documents confirm that the unit reported the applicant’s duty status changed from AWOL to Dropped From the Rolls of the Organization on 6 June 1972 and on 14 March 1975 respectively.

On 20 July 1973, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service. The separation document (DD Form 214) issued to him on the date of his separation confirms that his service was characterized as UOTHC, and that he was issued an UD Certificate (DD Form 258A). Item 30 (Remarks), also contains an entry that confirms that the applicant accrued a total of 182 days of time lost. Item 32 (Signature of Person Being Transferred or Discharged) contains the applicant’s signature, which indicates that he verified that the information contained in this separation document was correct at the time it was issued.

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 undesirable discharge.

Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 contains guidance on burden of proof. It states that the ABCMR begins its consideration of each case with the presumption of administrative regularity, and the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

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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 contentions that all references to a nine day pre-trial confinement period between 14 and 22 June 1972 should be removed from all his military records because orders were never issued; that all references to his being dropped from the rolls should also be expunged from all his military records because he was never charged or convicted of this offence; and that he received an UD, not an UOTHC discharge as indicated. However, the Board finds an insufficient evidentiary basis to support these claims.

2. The evidence of record confirms that the applicant was in pre-trial confinement from 14 through 22 June 1972, that he was dropped from the rolls of his organization on 7 June 1972 and 15 March 1973, and that he was issued an Undesirable Discharge Certificate in accordance with the governing regulation in effect at the time of his discharge.

3. The Board finds that the applicant has failed to satisfy the burden of proof required to overcome the presumption of administrative regularity with which it begins the consideration of every case. The evidence of record confirms that he audited his DA Form 20 and authenticated his DD Form 214, both of which contain entries pertaining to his pre-trial confinement. There is no indication that he ever questioned the validity of these entries at the time he signed either of these forms.

4. The applicant’s record also contains morning report extract documents that confirm that his duty status was reported as dropped from the rolls of the organization on two separate occasions. The fact that he was never charged or convicted of desertion has no bearing on his reported duty status and changing the valid morning report entries is not appropriate on that basis.

5. Finally, the applicant is advised that his service was characterized as under other than honorable conditions and he was also issued an Undesirable Discharge Certificate, which was appropriate under the governing regulation in effect at the time of his discharge. In effect, both of these categorizations are correct. Thus, there is no error or injustice related to either his service characterization or the type of discharge he received.

6. 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.

7. 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

__rtd____ ___ym __ __jhl ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002081041
SUFFIX
RECON
DATE BOARDED	2003/04/15
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1973/07/20
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In lieu of Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 260	123.0000
2.
3.
4.
5.
6.