MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            15 March 2000                  
	DOCKET NUMBER:    AR1999023775

	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. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		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:  That his Under Other Than Honorable (UOTH) Discharge be upgraded to a General Discharge.

APPLICANT STATES:  He was discharged for the good of the service for a         2 month unauthorized absence.  He was not pending any court-martial.  The only disciplinary trouble he ever had was one Article 15.  He believes that he was denied due process because his command took advantage of his immaturity and youth by stating that if he waived a discharge review board, he could be home with his wife.  He was told also that an administrative discharge, such as his UOTH, would automatically be upgraded to a general discharge.  Being 18 years old, and a newly wed, he listened to the representative of the command and accepted the administrative discharge.  It was not until 12 November 1998 when he tried to apply for benefits from the DVA that he found this was not true

In support of his request, he has provided a copy of his DD Form 214, Report of Transfer or Discharge, and a copy of his Enlisted Qualification Record.

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

He enlisted in the Regular Army on 23 August 1972, departed AWOL on           16 January 1973 and was dropped from the rolls as a deserter on 15 February 1973.  He returned to military control on 15 April 1973 and was used in a duty soldier role until his discharge for the good of the service on 21 May 1973.

The record shows that on 20 April 1973 the applicant requested discharge for the good of the service.  Included with his request was a court-martial sheet charging him with a violation of Article 86, UCMJ, for 90 days AWOL.  The request shows that he consulted with military legal counsel on 20 April 1973 and submitted a statement in his own behalf before finalizing his request for discharge.  He also acknowledged that he might receive an UOTH discharge and that such a discharge could deprive him of many of his DVA benefits.

In the statement supporting his request for a chapter 10 discharge, he indicated that since he entered the Army he found he could not take orders, that he wanted to be out of the Army because he could make a better person of himself, that he understood the type of discharge he might receive,  and that while he was AWOL he got married and he wanted to get out of the Army so he could help his parents who had declared bankruptcy.

His request for discharge was approved by the appropriate commander on 9 May 1973 who directed that the applicant be issued an Undesirable Discharge Certificate.

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. There is no indication that the request was made under coercion or duress.  Furthermore, the type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief. The Board notes that concurrent with his request for discharge he submitted a statement indicating he could not follow orders and expressing his desire to be done with the Army regardless of the character of his discharge or the benefits that might be denied him.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

3.  The facts as set down in his application regarding the circumstances of his UOTH are in several respects inconsistent with the evidence of record.  He indicates, for example, that he was only AWOL for 60 days when in fact the AWOL period was 90 days; he says he was not pending court-martial but his request for discharge contains a copy of the charge sheet recording the charge of AWOL against him; and finally, contrary to his assertion, there is no evidence that he was advised that his discharge would automatically upgrade to a general discharge.  Unfortunately, his problems seem to have been of his own making and the information he presents now in his own defense does not warrant changing the character of his discharge.

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

__rvo____  __mkp __  __vbc___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999023775	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000315	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  144.0136		
2.   144.0137		
3.		
4.		
5.		
6.