MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            14 January 1999 
	DOCKET NUMBER:   AC98-12455
                                              AR1999015976

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Shirley L. Powell		Member	
	Ms. Kathleen A. Newman		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 he was told to take the undesirable discharge instead of being tried by court-martial and that he is now of the age that he needs medical treatment.  However, with the type of discharge he has, he is not entitled to treatment by the VA. 

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

The applicant enlisted in Abilene, Texas on 30 March 1973 for a period of 4 years, assignment to Fort Hood, Texas, and payment of a cash enlistment bonus.

He successfully completed his training as a light weapons infantryman and was transferred to Fort Hood on 11 August 1973.  He was advanced to the pay grade of E-3 on 23 April 1974. 

On 14 June 1974 nonjudicial punishment (NJP) was imposed against the applicant for being AWOL from 6 May to 4 June 1974.  His punishment consisted of a forfeiture of pay, extra duty for 45 days, and restriction for 45 days (suspended).

He was advanced to the pay grade of E-4 on 5 December 1974.

On 18 February 1975 NJP was imposed against the applicant for sleeping on guard duty.  His punishment consisted of a reduction to the pay grade of E-3 (suspended for 60 days) and extra duty and restriction for 14 days.

On 10 November 1975 the applicant again went AWOL and remained absent until he surrendered to military authorities at Fort Hood on 12 March 1976 and charges were preferred against him.

On 16 March 1976, 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.  In his request he indicated that he was submitting the request of his own free will, that he had not been subjected to any coercion whatsoever by any person, and that he was aware of the implications attached of submitting such a request.

He also stated in his request that he was guilty of the charges against him or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge and that under no circumstances did he desire rehabilitation or have a desire to perform further military service.  He also indicated that although he had been furnished legal advice, the decision to submit his request was made on his own. 

The appropriate authority approved his request on 31 March 1976 and directed that he be furnished with an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 14 April 1976 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 7 months, and 15 days of total active service and had 152 days of lost time due to AWOL.

There is no evidence 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 limitations.

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

__rvo ___  ___slp___  __kan  __  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12455/AR1999015976	
SUFFIX		
RECON	 	
DATE BOARDED	1999/01/14	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1976/04/14	
DISCHARGE AUTHORITY	AR635-200, ch10 	
DISCHARGE REASON	In lieu of trial by CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  144.7000		
2.		
3.		
4.		
5.		
6.