MEMORANDUM OF CONSIDERATION


         IN THE CASE OF
        

         BOARD DATE: 26 June 2003
         DOCKET NUMBER: AR2003084835

         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:

Mr. Walter T. Morrison		Chairperson
Mr. Lester Echols		Member
Mr. Lawrence Foster		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 his undesirable discharge be upgraded.

APPLICANT STATES: In effect, that he served in the Army from 1972 to 1976. In 1976, he experienced marital problems and as a result made a lot of mistakes. He claims that he asked to be discharged under the provisions of chapter 10, Army Regulation 635-200, but he was never made aware of the seriousness of the discharge.

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

He initially entered active duty on 30 October 1972, and was trained in and awarded military occupational specialty (MOS) 13B (Field Artillery Crewman). On 26 November 1974, he was honorably discharged for the purpose of immediate reenlistment. At the time, he had completed 1 year and 25 days of active military service, and he held the rank of specialist four (SP4).

On 27 November 1974, while serving in Germany, the applicant reenlisted for four years. The record also confirms that the highest rank he attained while serving on active duty was SP4, and the only award he received during his tenure on active duty was the National Defense Service Medal. His record documents no acts of valor, significant achievement, or service warranting special recognition.

The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five separate occasions between 4 April 1973 and
11 December 1975.

On 24 February 1976, a court-martial charge was preferred against the applicant for his violation of Article 86 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 10 January through
13 February 1976.

On 29 March 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, and the possible effects of an UD. Subsequent to this counseling, the applicant submitted a written request for discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200. In his request, he confirmed that he had been fully advised by legal counsel of the possible effects of an UD. He further acknowledged that he understood that he could be deprived of many or all benefits administered by the Veterans Administration (VA), and of his rights and benefits as veteran under both Federal and State law. He further confirmed that he understood that he could expect to encounter substantial prejudice in civilian life because of an UD.

On 14 April 1976, the Staff Judge Advocate (SJA), recommended approval of the applicant’s request for discharge. He stated that the applicant had been counseled by his unit commander and legal counsel, and fully understood the consequences of his request and the benefits he could lose.

On 20 April 1976, the separation 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 5 May 1976, the applicant was discharged accordingly.

The DD Form 214 issued to the applicant on the date of his separation confirms that he was discharged under the provisions of chapter 10, Army Regulation
635-200, in lieu of trial by court-martial. This document also confirms that at the time of his discharge the applicant had completed 1 year, 2 months, and 28 days on his current enlistment and a total of 3 years, 3 months, and 25 days of creditable active military service. It also shows that he had accrued 71 days of time lost.

On 24 September 1981, the Army Discharge Review Board (ADRB) found the applicant’s discharge was both proper and equitable, and it denied the applicant’s request for an upgrade.

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.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and it is concluded:

1. The Board notes the applicant’s contention that his discharge should be upgraded because he served for almost four years, he was young and experienced marital problems. However, the Board finds these factors are not sufficiently mitigating to warrant the requested relief.

2. The Board also considered the applicant’s claim that the seriousness of his discharge was never fully explained to him, but it finds insufficient evidence to support this assertion.

3. 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 and being advised of the consequences of requesting an administrative discharge in lieu of court-martial, which included the loss of VA benefits, the applicant voluntarily requested separation in lieu of trial by court-martial.

4. 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 undistinguished record of service. Therefore, the Board concludes that a discharge upgrade is not warranted in this case.

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

__LF__ _WTM__ __LE_ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084835
SUFFIX
RECON
DATE BOARDED	2003/06/DD
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1976/05/05
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	C10
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.