MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            4 February 1999
	DOCKET NUMBER:   AC98-12835
                                              AR1998012316

	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:

	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:  That his undesirable discharge be upgraded to honorable.

APPLICANT STATES:  That at the time of his service the charges that were preferred against him were for offenses that were very common amongst personnel.  He further states that he completed his complete term of service and that he did his best considering the environmental conditions.

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

He enlisted on 27 October 1970 for a period of 3 years.  He successfully completed his training and was transferred to Germany on 13 April 1971.  During the course of his assignment he performed the duties of a clerk typist, special services specialist, and cook.  He was promoted to the pay grade of E-4 on 8 November 1971.

On 27 December 1971 nonjudicial punishment (NJP) was imposed against the applicant for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-3 (suspended), a forfeiture of pay, restriction for 14 days (suspended), and extra duty.  

On 11 February 1972 NJP was imposed against the applicant for failure to go to his place of duty and for wrongfully appropriating government property.  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay, and 14 days of extra duty.

On 19 September 1972 NJP was imposed against the applicant for disobeying a lawful order from an NCO and using disrespectful language towards an NCO.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, extra duty for 30 days, and correctional custody for 14 days.

On 19 December 1972 NJP was imposed against the applicant for disobeying a lawful order and for three specifications of failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-1 (suspended for 60 days), a forfeiture of pay, 5 days of correctional custody, and 20 days of extra duty.

On 2 February 1973 NJP was imposed against the applicant for failure to go to his place of duty and two specifications of disobeying a lawful order of his commander to perform extra duty.  His punishment consisted of a forfeiture of pay and 7 days of correctional custody.

The applicant was convicted by a special court-martial on 14 May 1973 for two specifications of disobeying a lawful order and two specifications of failure to go to his place of duty.  He was sentenced to confinement at hard labor for 50 days and a forfeiture of $200.00 per month for 4 months.

Charges were preferred against the applicant on 30 July 1973 for the wrongful possession and use of heroin.  An investigation was conducted under the provisions of Article 32 of the UCMJ. The investigation was completed on 2 August 1973 and the investigating officer recommended that the applicant be tried by a special court-martial authorized to direct a Bad Conduct Discharge. 

On 27 August 1973, 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.

Although not fully explained in the available records, the applicant’s records show that he escaped from his NCO escort in Schweinfurt, Germany on 28 September 1973 and that he remained AWOL until he was apprehended by military authorities in Frankfurt, Germany on 25 October 1973.

The appropriate authority approved the request for discharge on 1 October 1973 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, upon his return to military control he was discharged under other than honorable conditions on 7 November 1973 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  

Although his report of separation indicates that he had served 3 years and 11 days of total active service and had no lost time, he in fact had at least 23 days of lost time for AWOL and time served in confinement which is not fully accounted for in his records.

The applicant applied to the Army Discharge Review Board (ADRB) on 4 June 1974 requesting that his discharge be upgraded to a general discharge.  The ADRB determined that the applicant had been properly discharged and denied his request on 5 August 1974.

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 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.  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, the type of discharge directed and the reasons therefore appear to be appropriate considering all of the facts of the case.

3.  The applicant’s contentions have been noted by the Board and appear to be without merit.  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.  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 offenses for which he was charged and his otherwise undistinguished record of service. 

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

__vbc___  __jhl ____  ___aao__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12835/AR1998012316	
SUFFIX		
RECON	 	
DATE BOARDED	1999/02/04	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1973/11/07	
DISCHARGE AUTHORITY	AR 635-200, CHAP 10 	
DISCHARGE REASON	IN LIEU OF TRIAL BY CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  A70.00		
2.		
3.		
4.		
5.		
6.