MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            21 December 1999
	DOCKET NUMBER:   AR1999025514

	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. Hubert O. Fry, Jr.		Chairperson	
	Ms. Meta Waller		Member	
	Ms. Debra Williams		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 undesirable discharge be upgraded to a general discharge.

APPLICANT STATES:  That he was not given due process and was told to just accept the discharge.  He also states that his discharge was based on one incident with no other adverse action and that he has been clean and sober now for over 12 years.

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

The applicant enlisted in Boston, Massachusetts on 22 November 1972 for a period of 2 years and subsequently extended his enlistment for training as a legal clerk and assignment to Europe.  He successfully completed his training and was transferred to Germany on 10 July 1973 for duty as a legal clerk. 

On 16 August 1973 nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order issued by a general officer.  It appears that he locked his door to prevent entry during a drug inspection.  His punishment consisted of a forfeiture of pay.  The applicant requested consultation with counsel, appealed the punishment, and his appeal was denied.

On 19 February 1974 NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay and extra duty.  He did not appeal the punishment.

The facts and circumstances surrounding his discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214) signed by the applicant which shows that he was discharged on 14 March 1975 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  He had served 2 years, 3 months, and 23 days of total active service.

There is no evidence 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.

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.  In doing so the individual must admit guilt to the charges or charges of a lesser included offense that may result in a punitive discharge.  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.  In the absence of evidence to the contrary, it must be presumed that 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, it must also be presumed that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  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.  Therefore, it appears that 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 his otherwise undistinguished record of service. 

5.  The applicant’s contentions that his due process rights were violated and that he was told to take the undesirable discharge appear to be without merit.  The applicant was a legal clerk and was in a position to know his rights and the options available to him at the time.  Furthermore, in order to receive a discharge under chapter 10, the individual must voluntarily request it and must admit guilt to the offenses for which they are charged or a lesser included offense that results in a punitive discharge.  Therefore, in the absence of evidence to the contrary, and considering his otherwise undistinguished record of service, there appears to be no basis for further relief in his case.

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

__hof____  _mw____  __dw ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999025514	
SUFFIX		
RECON		
DATE BOARDED	1999/12/21	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/03/14	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689 	144.7000/A70.00/good of svc	
2.		
3.		
4.		
5.		
6.