MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            31 March 1999
	DOCKET NUMBER:   AR1999023006

	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 his discharge should be upgraded to honorable because he was young and immature when he volunteered for the Army.  He contends that he performed his duty well, but he was emotionally involved with a woman (now his wife) who was pregnant.  He contends that his fiancee began experiencing many complications with her pregnancy and his request for leave was denied, so he went AWOL.  He goes on to state that he was punished by nonjudicial punishment (NJP) for leaving; however, he went AWOL again for the same reason.  He states that he took a bad discharge to get out of the Army, that he was not offered counseling or rehabilitation and he did not appreciate the consequences of his actions.    

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

He enlisted on 18 January 1971 for a period of 3 years.  He successfully completed his training and was transferred to Fort Eustis, Virginia, for duty as an equipment storage specialist.

On 20 April 1971 nonjudicial punishment (NJP) was imposed against the applicant for failing to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay and 7 days of restriction and extra duty.

On 16 June 1971 NJP was imposed against the applicant for being AWOL from
1 June 1971 to 3 June 1971.  His punishment consisted of a forfeiture of pay.

He received his third NJP on 5 August 1971 for failing to go to his appointed place of duty.  His punishment consisted of 14 days of restriction and extra duty.

On 4 May 1972 the applicant was convicted by a special court-martial of two specifications of AWOL (from 8 November 1971 to 23 March 1972; and from
3 April 1972 to 10 April 1972).  He was sentenced to be confined at hard labor for 3 months, forfeit $88.00 pay per month for 3 months and to be reduced to pay grade E-1.  The convening authority approved the sentence on 25 May 1972; however, suspended the unexecuted portion of the sentence to confinement for 30 days.

On 8 June 1972 the suspended portion of the sentence to confinement was vacated. 

The applicant went AWOL on 12 June 1972 and returned to military control on
20 September 1972.
  
Records show charges were preferred against the applicant for being AWOL and trial by special court-martial was recommended.

On 28 September 1972 the applicant’s commander initiated action to separate him under the provisions of Army Regulation 635-212, for unfitness based upon frequent incidents of discreditable nature with military authorities.

On 4 October 1972, 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 receive a discharge under other than honorable conditions and that he personally made the choice to submit his request.  Additionally, he elected not to submit a statement in his own behalf.

Although the appropriate authority’s approval is not contained in the available records, the applicant’s records show that he was discharged under other than honorable conditions on 31 October 1972, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served
1 year of total active service and he had 284 days of lost time due to AWOL and confinement.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  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.  In the absence of evidence to the contrary, it is presumed that the discharge directed and the reasons were appropriate considering all of the facts of the case.

3.  While the Board is empathetic, the applicant’s stated reasons of youth and personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.  Also, the applicant’s record of undistinguished service, combined with his disciplinary record, does not warrant equitable relief.

4.  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.

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

__wtm___  __jhk ___  __cwb___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023006	
SUFFIX		
RECON		
DATE BOARDED	1999/03/31	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1972/10/31	
DISCHARGE AUTHORITY	AR 635-200 CHAPTER 10  	
DISCHARGE REASON	IN LIEU OF TRIAL BY CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.  835		
3.  813		
4.  821		
5.  815		
6.