MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           15 July 1999
	DOCKET NUMBER:   AR1998012054

	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. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Ms. Debra Williams		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:  That his discharge under other than honorable conditions be upgraded to honorable, that the reason for his discharge be changed to “Convenience of the Government”, and that he be given a reentry (RE) code of “1”.

APPLICANT STATES:  That all of his prior discharges were honorable and that because his reenlistment NCO did not obtain a grade waiver for his last reenlistment, he was charged with a fraudulent reenlistment that led to his receiving a bad discharge.  He further states that he was a victim of circumstances and that he was doing what he was instructed to do like a good soldier should.

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

The applicant was inducted in New Orleans, Louisiana on 10 March 1970.  He successfully completed his training as an armor crewman and was transferred to Vietnam, where he served until he was transferred to Fort Hood, Texas on 6 July 1971 in the pay grade of E-4.  He reenlisted on 12 December 1971 for a period of 6 years.

The applicant was promoted to the pay grade of E-5 on 1 February 1973 and served a tour in Germany from July 1974 to July 1977.  While stationed at Fort Polk, Louisiana, he reenlisted on 3 October 1977 for a period of 6 years.

The applicant began a series of going AWOL from 2 December to 4 December 1978, 8 December 1978 to 3 January 1979, 12 January 1979 to 16 January 1979, and 17 February 1979 to 30 October 1983.

The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, his records show that he was discharged under other than honorable conditions on 13 December 1971, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served 8 years, 11 months, and 16 days of total active service and had over 1750 days of lost time due to AWOL.

A review of the applicant’s records failed to reveal any mention that the applicant required a grade waiver to reenlist or that he was ever accused of fraudulent reenlistment.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitation.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of such a request is that the individual must state that they have been counseled and that they understand the consequences of their request and the effect that a discharge under other than honorable conditions may have on their benefits as well as the influence it may have in civilian life.  Additionally, individuals are afforded an opportunity to submit a statement in their own behalf or to explain any mitigating circumstances that may have an effect on the type of discharge they receive.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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.  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.

2.  Accordingly, it must also be presumed that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been noted by the Board and are not supported by the evidence of record.  Likewise, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses and his otherwise undistinguished record.  Furthermore, a request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned.  Had there been mitigating circumstances that led to his misconduct, he could have submitted a statement in his own behalf at the time he submitted his request or he could have stood trial by court-martial whereas he could have asserted his innocence based on mitigating circumstances.  Accordingly, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.

4.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the seriousness of the charges against him. 

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 the aforementioned 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

__gp____  ___dw___  ___jlp___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998012054	
SUFFIX		
RECON		
DATE BOARDED	1999/07/15	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1983/12/13	
DISCHARGE AUTHORITY	AR 635-200, CH10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689 	144.7000/A70.00/GOOD OF THE SVC	
2.		
3.		
4.		
5.		
6.