MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            4 February 1999  
	DOCKET NUMBER:   AC98-12438
   AR1998012578

	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	
	Ms. Wanda L. Waller		Analyst	

The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Van B. Cunningham		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 effect, that discharge under other than honorable conditions be upgraded to honorable.  

APPLICANT STATES:  In effect, that his charges were unfounded and should have been dismissed.    

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

He was inducted at the Armed Forces Examining and Entrance Station in Dallas, Texas, on 14 January 1971.  He successfully completed his basic and advanced individual training at Fort Ord, California, and was transferred to Germany for duty as a rifleman.  

On 29 February 1972 nonjudicial punishment (NJP) was imposed against the applicant for leaving his appointed place of duty without authority.  His punishment consisted of a reduction to pay grade E-2 and a forfeiture of pay.  

On 24 August 1972 the applicant’s commander initiated a recommendation to bar the applicant from reenlistment based on his NJP and substandard performance of duty.  He further indicated that the applicant could not adapt to military life, could not follow orders, took too much time and was involved in frequent difficulties with fellow soldiers.  The applicant elected not to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment on 
15 September 1972.

On 28 September 1972 charges were preferred against the applicant for three specifications of being AWOL, two specifications of failing to go to his appointed place of duty, missing movement thought neglect, disobeying a lawful command from his superior commissioned officer and two incidents of disobeying lawful orders from superior NCO’s.  Trial by summary court-martial was recommended. However, additional charges were preferred against the applicant on 24 October 1972 for writing two bad checks totaling $20.00 and failing to maintain sufficient funds.  Trial by special court-martial was recommended. 

On 15 November 1972, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He indicated in his request that he understood that he could receive an undesirable discharge and that he personally made the choice to submit his request.  Additionally, he elected not to submit a statement in his own behalf.

The intermediate commanders recommended approval of the applicant’s request for discharge and that he be furnished an Undesirable Discharge Certificate.

On 18 November 1972 the appropriate authority approved his request for discharge and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on
6 December 1972 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 10 months, and 23 days of total active service.

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, it is concluded:

1.  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.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant’s contention that his charges were unfounded and should have been dismissed, appears to be without merit.  The applicant was afforded the opportunity to be tried by court-martial and take his chances with any punishment he might have received therefrom.  However, he voluntarily requested in writing to be administratively discharged, rather than risk the consequences of a
court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.  

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 the aforementioned 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

__jhl____  ___vbc __  __aao___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12438/AR1998012578	
SUFFIX		
RECON	 	
DATE BOARDED	1999/02/04	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1972/12/06	
DISCHARGE AUTHORITY	AR635-200, ch 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  A94.07		
2.  A70.00		
3.		
4.		
5.		
6.