MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            9 December 1998 
	DOCKET NUMBER:   AC98-12511

	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.	June Hajjar		Chairperson	
	Mr.	Fred N. Eichorn		Member	
	Mr.	Thomas B. Redfern, III		Member	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 an honorable discharge.  

APPLICANT STATES:  In effect, that he was incarcerated by civil authorities when he went home on leave for a crime that occurred in South Carolina when he was not even in South Carolina.  He goes on to state that his commander would not tell the authorities that he was at Fort Bragg, North Carolina and he was detained for 26 days until his uncle told the authorities to either charge him or let him go.  He also states that his commander told him that he would be placed in the stockade when he returned for being AWOL.  Therefore, when the civil authorities released him he contacted his commander and was informed to turn himself in to the military police at Fort Bragg.  He continues by stating that he could not get any help from his chain of command and he did not want to go back to jail, so he went home and remained there until his commander told him that he could come back, request a discharge,  and that he would only be there for 2 weeks.  He also states that his record of service up until that time was good and he is older now and desires to set the record straight.

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

The applicant enlisted in Florence, South Carolina on 30 August 1974 for a period of 3 years and training as a power generator operator. 

On 21 February 1975, while attending his advanced individual training (AIT), nonjudicial punishment (NJP) was imposed against the applicant for being AWOL from 10 February to 13 February 1975.  His punishment consisted of a forfeiture of pay and restriction and extra duty for 7 days.  Although not present in the available records, his records indicate that NJP was imposed against him on two other occasions.

He completed his AIT and was transferred to Fort Bragg on 26 March 1975.

The applicant again went AWOL on 21 August 1975 and he remained absent until he surrendered to military authorities on 4 February 1976 and charges were preferred against him.

On 9 February 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.  He also submitted a statement in his own behalf whereas he asserted that the Army  and the unit he was in had done him wrong because he had requested discharge under chapter 5 and there was no action taken to get him out before he went AWOL.

The appropriate authority approved his request on 26 February 1976 and directed that he be furnished with an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 10 March 1976 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 1 year and 23 days of total active service and had 168 days of lost time due to AWOL.

The applicant applied to the Army Discharge Review Board (ADRB) on 2 November 1976 for an upgrade of his discharge.  He contended at that time that he suffered from injuries in an automobile accident which prevented him from performing his duties so he went AWOL.  The ADRB denied his request on 16 November 1977.

He again applied to the ADRB for an upgrade of his discharge on 9 February 1979 and was granted a personal appearance before that board.  He contended at that time that he had come from a broken home, that he had been in a car accident while in AIT, and that he could not adequately perform his duties.  He further contended that he initially thought that he was going to be administratively discharged under the provisions of chapter 5 and later learned that he was going to be discharged under the provisions of chapter 10 so he went AWOL.  The ADRB again denied his request.

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

4.  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

__jh ____  ___fe ___  __tbr____  DENY APPLICATION

						Loren G. Harrell
						Director