MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            4 February 1999 
	DOCKET NUMBER:   AR1999014807

	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:  In two applications, that his undesirable discharge be upgraded to honorable and that he be paid $638.51 that was unjustly collected from him.

APPLICANT STATES:  That he has been diagnosed with a terminal illness and is re-evaluating his life.  He goes on to state that his discharge has become a source of embarrassment to him because the only error he made at the time was being too immature to pursue getting his discharge upgraded.  He continues by stating that he initially joined the Oklahoma National Guard and was informed that it would be 6 months before he could go to basic training.  Not wanting to wait 6 months because he needed a job, he went to Texas and attempted to join the Regular Army.  However, he failed the entrance physical examination due to a history of ulcers.  When he was rejected by the Regular Army, he asked his Regular Army recruiter if he should go back to his National Guard unit in Oklahoma and was informed that he should not, because the two branches would communicate.  He also states that his recruiter told him to go back home and not to worry about it.  He contends that he was young and didn’t understand what was going on and assumed that he had no more responsibility to the military and that he could search for a job.  After a few months, he received a call from his aunt in Oklahoma informing him that the Army was looking for him and that he was reported as AWOL.  He further states that he contacted the FBI to inquire if this was true and initially was told that there was no warrant issued for him.  However, the following day he received a call back from the FBI confirming that there was a warrant on him and that they would be over to pick him up.  He was then transported to Fort Hood, Texas and then to Fort Sill, Oklahoma where he attempted to explain the circumstances but to no avail.  After becoming frustrated that he was not being heard, he decided to wait it out till he was discharged.  Additionally, he contends that he never received any money from the Army, yet the Army collected $638.51 from him during the months of October and November 1976 and he desires that it be returned to him.  In support of his application he submits copies of his pay vouchers for October And November 1976 and a copy of his general discharge from the Oklahoma Army National Guard.

EVIDENCE OF RECORD:  The applicant's military records, although incomplete, show:

The applicant enlisted with the consent of his legal guardian in the Oklahoma National Guard on 26 August 1975 for a period of 4 years.  On 2 September 1975 he was given a training quota with a report date to Fort Dix, New Jersey on 2 April 1976 to attend basic training with a subsequent assignment to Aberdeen Proving Grounds, Maryland for his advanced individual training.  

At the time of his enlistment he acknowledged that it was his responsibility to keep his unit notified of his address and that he understood that his failure to satisfactorily participate in training with his unit could result in his being  involuntarily ordered to active duty for a period of 2 years.

Meanwhile, the applicant failed to participate with his National Guard Unit in Oklahoma and action was taken to order the applicant to active duty for failure to participate with his unit in accordance with the terms of his contract and to discharge him from the Oklahoma Army National Guard.  Accordingly, he was discharged under honorable conditions from the Oklahoma Army National Guard on 1 April 1976 and was directed to report for active duty to Fort Dix on 2 April 1976.

The applicant failed to report to Fort Dix on 2 April 1976 as directed and was reported as  being AWOL by Fort Dix.  The applicant remained absent until he was apprehended by the FBI in Odessa, Texas on 23 September 1976 and was returned to military control at Fort Hood, Texas.

The applicant was then transported to Fort Sill, Oklahoma where charges were preferred against him on 30 September 1976.  The applicant elected not to submit a statement in his own behalf but indicated that the reasons for his being AWOL were personal.

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 making the request of his own free will and that he had not been subjected to any coercion by any person.  He also indicated that he was guilty of the charges against him or of a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  He further indicated that he understood that he could be issued a discharge under other than honorable conditions and that he understood the implications associated with such a discharge.

The appropriate authority approved his request on 8 November 1976 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 15 November 1976 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 month and 23 days of total active service and had 174 days of lost time due to AWOL.

There is no indication 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.

The pay vouchers submitted by the applicant indicate that during the months of October and November 1976 he received more payments than he was authorized and in both months collections were made which totaled $638.51.

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.  The applicant clearly indicated that he understood the implications attached to a discharge under other than honorable conditions.  Additionally, 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.

4.  Had the applicant believed that he was innocent of the charges against him he could asserted his innocence before a trial by court-martial.  However, the applicant admitted his guilt to the charges against him and made a brief statement to explain his actions.  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. 

5.  The applicant’s contentions regarding the debt of $638.51 owed to him appears to be without merit.  The pay vouchers provided by the applicant clearly show what he was paid, what he was entitled to receive, and the amount of overpayment made which was collected from him.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that the overpayment collected from him was in error or unjust.

6.  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.

7.  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	AR1999014807	
SUFFIX		
RECON	 	
DATE BOARDED	1999/02/04	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1976/11/15	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	Ch 10	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  A94.07		
2.  128.000		
3.		
4.		
5.		
6.