MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            29 July 1999
	DOCKET NUMBER:   AR1999020457

	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. Charles H. Loundermon		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Curtis L. Greenway		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES:  That at the time, his wife had left him and he was a very confused young man and went AWOL to get her back.  He further states that he was advised to turn himself in and that he did so.  He goes on to state that he is presently a father to his children and that he received full custody from the divorce.  He also states that his life is better, that he is a better person for his mistakes, and that he was a good soldier before he went AWOL. 

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

The applicant initially enlisted in the Indiana Army National Guard where he served for 1 year, 11 months, and 15 days.

On 8 April 1988 he enlisted in the Regular Army for a period of 4 years and training as an M1 Abrams Tank Systems Mechanic.  He successfully completed his training at Fort Knox, Kentucky and was transferred to Fort Stewart, Georgia on 2 September 1988.  He was promoted to the pay grade of E-3 on 1 December 1988.

Although the specific circumstances are not present in the available records, his records indicate that nonjudicial punishment was imposed against him on 30 May 1989 which resulted in his being reduced to the pay grade of E-2.

On 18 July 1989 he went AWOL and remained absent until he surrendered to military authorities at Fort Benjamin Harrison, Indiana on 20 September 1989.  He was then transferred to Fort Knox where charges were preferred against him on 26 September 1989.

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 elected not to submit a statement in his own behalf.

The appropriate authority approved his request on 23 October 1989 and directed that he be discharged under other than honorable conditions.

Accordingly, the applicant was discharged under other than honorable conditions on 13 December 1989 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 6 months, and 4 days of active service during his current enlistment and had 64 days of lost time due to AWOL.

The applicant applied to the Army Discharge Review Board (ADRB) on 10 December 1998 citing essentially the same reasons he has cited to this Board.  The ADRB determined that the reason for discharge and the characterization of his service were both proper and equitable and voted to deny his application on 9 April 1999. 

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 condition of such a request is that the individual must state that they have been counseled and that they understand the consequences of their request and the effect that a discharge under other than honorable conditions may have on their benefits as well as the influence it may have in civilian life.  Additionally, individuals are afforded an opportunity to submit a statement in their own behalf or to explain any mitigating circumstances that may have an effect on the type of discharge they receive.  Although an honorable or general discharge is authorized, 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 were appropriate under the circumstances.

3.  The applicant’s contentions have been noted by the Board and are not supported by the evidence of record.  Likewise, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses and the evidence of record.  Furthermore, a request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned.  Had there been mitigating circumstances that led to his misconduct, he could have submitted a statement in his own behalf at the time he submitted his request or he could have stood trial by court-martial whereas he could have asserted his innocence based on mitigating circumstances.  Accordingly, 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.  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 charges against him.

5.  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.

6.  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

___slp___  __chl ___  __clg ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020457	
SUFFIX		
RECON		
DATE BOARDED	1999/07/29	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1989/12/13	
DISCHARGE AUTHORITY	AR635-200, ch10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689 	144.7000/A70.00/GOOD OF SVC	
2.		
3.		
4.		
5.		
6.