MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            30 December 1998
	DOCKET NUMBER:   AC98-12404
                                              AR1998014187

	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. Sherri V. Ward		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 a general discharge.  

APPLICANT STATES:  That due to his age at the time and his lack of knowledge of the military and its legal system, he was not afforded proper legal counsel to represent him and he was not made aware of the long term effects of his actions. 

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

The applicant enlisted in Oklahoma City, Oklahoma on 29 January 1974 for a period of 3 years and assignment to Fort Sill, Oklahoma.  He successfully completed his basic training at Fort Leonard Wood, Missouri and was transferred to Fort Sill on 29 March 1974 for duty as a duty soldier.

On 20 May 1974 he went AWOL until 23 May 1975.  The available records are silent in regards to any punishment imposed; however, on 28 May 1974 nonjudicial punishment was imposed against the applicant for disobeying a lawful order of a commissioned officer which revoked his pass priviledges and for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay and extra duty and restriction for 14 days.

The applicant again went AWOL from 1 July 1974 to 23 July 1974 and from 31 July 1974 until he was returned to military control at Fort Gordon, Georgia on 29 September 1974 where charges were preferred against him. 

On 17 October 1974, after consulting with counsel (an officer of the Judge Advocate General Corps), 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.  In his request he acknowledged that he was making the request of his own free will without coercion of any kind, that he had been informed and understood the implications that were associated with a discharge under other than honorable conditions, that he was guilty of charges against him or of a lesser included offense that authorized the imposition of a bad conduct or dishonorable discharge, and that he had no desire to perform further military service.

The applicant also elected to submit a statement in his own behalf in which he asserted that he had problems at home, he could not adapt to Army life, that he no longer desired to be in the Army, that he could not remain hundreds of miles away from his family, that he would keep getting in trouble, and that he would take an undesirable discharge.  His counsel witnessed his statement.

The appropriate authority approved his request on 30 October 1974 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 20 November 1974, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 6 months and 26 days of total active service and had 86 days of lost time due to AWOL.

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.
 
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.  However, they are not supported by the evidence submitted with his application or the evidence of record and his undistinguished record of service is not sufficiently mitigating to warrant relief.

4.  The applicant requested a discharge for the good of the service in order to avoid a trial by court-martial and the possibility of receiving a felony conviction.  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 offense for which he was charged.

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

___gp___  __sw____  __vbc___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12404/AR1998014187	
SUFFIX		
RECON	 	
DATE BOARDED	1998/12/30	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/11/20	
DISCHARGE AUTHORITY	AR635-200, chapter 10	
DISCHARGE REASON		
BOARD DECISION	NC	
REVIEW AUTHORITY		
ISSUES         1.  110.00		
2.		
3.		
4.		
5.		
6.