MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            31 March 1999
	DOCKET NUMBER:   AR1999020189

	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	
	Ms. Wanda L. Waller		Analyst	

The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Walter T. Morrison		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 effect, that his discharge under other than honorable conditions be upgraded to honorable.  

APPLICANT STATES:  In effect, that an honorable discharge would afford him the opportunity for medical benefits.  He contends that he needs another chance and that he was a very good soldier until he went AWOL. 

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

The applicant enlisted on 9 August 1974 for a period of 3 years.  He successfully completed his training and was transferred to Fort Hood, Texas, for duty as an infantryman. 

On 16 December 1974 nonjudicial punishment was imposed against the applicant for being AWOL from 9 December 1974 to 16 December 1974.  His punishment consisted of a forfeiture of pay and extra duty for 7 days.

The applicant went AWOL on 31 August 1976 and returned to military control on 1 January 1977.

Charges were preferred against the applicant on 5 January 1977 for the aforementioned AWOL period.  Trial by special court-martial was recommended.

On 7 January 1977, 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 indicated in his request that he understood that he could be discharged under other than honorable conditions, furnished an Undesirable Discharge Certificate and that he personally made the choice to submit his request.  Additionally, he elected not to submit a statement in his own behalf.

The applicant’s commander recommended approval of his request for discharge and that he be furnished a discharge under other than honorable conditions. 

On 18 January 1977 the appropriate authority approved the applicant’s request for discharge and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on
25 January 1977 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 1 month, and 16 days of total active service and he had 123 days of lost time due to AWOL.

The applicant applied to the Army Discharge Review Board on
9 November 1998.  However, that board was precluded from accepting his application due to its statute of limitations (15 years).  
 
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.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

2.  The applicant’s contentions were noted by the Board.  However, the applicant has failed to convince the Board through the evidence submitted or the evidence of record that his discharge was unjust and should be upgraded.

3.  The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date. 

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

___wtm__  __jhk ___  ___cwb__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020189	
SUFFIX		
RECON		
DATE BOARDED	1999/03/31	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1977/01/25	
DISCHARGE AUTHORITY	AR 635-200 CHAPTER 10	
DISCHARGE REASON	IN LIEU OF TRIAL BY CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.00	
2.  813	A92.23	
3.  819	A92.29	
4.		
5.		
6.