MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 February 2000                   
	DOCKET NUMBER:   AR1999026554

	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.

	Mrs. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Mr. Fred Eichorn		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger Able		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 her husband the former service member’s (FSM) discharge be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that her husband the FSM, served in the Army for his government and country.  She believes that she is entitled to benefits from the VA.  

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

On 5 September 1974, the FSM enlisted in the Regular Army for 3 years.  He successfully completed the required training and was awarded military occupational specialty 67V10 (Helicopter Repairman).  The highest grade he achieved was pay grade E-2.

A CID Report of Investigation disclosed that at approximately 1830 hours on 
28 June 1975, the FSM and another soldier allegedly entered a secured room in the barracks and stole a Polaroid camera, cassette tape player, J C Penny 
4-band radio, other unidentified items and an undetermined amount of US coins. A copy of a pawn shop ticket was obtained from civil authorities which reflected the camera was pawned.  The FSM was going to be interviewed about the alleged offense, however, on the 30 June 1975; he went absent without leave (AWOL).  There is no evidence in the FSM’s record which indicates, that charges were preferred against the FSM for the above offense.

On 13 October 1975, court-martial charges were preferred against the FSM for going AWOL from 30 June to 8 October 1975.  

On 17 October 1975, after consulting with legal counsel the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He was afforded the opportunity to submit statements in his behalf.  He stated in effect, that although the Army gave him the training that he wanted.  It was impossible for him to remain in the military due to marital and financial problems. He further stated that, if he was returned to duty, he would be forced to go AWOL again.  He continued to say that he understood that he would loose all benefits, medical, dental, home loans and school benefits under the GI Bill.

On 17 October 1975, the FSM was found fit for retention.

On 22 November 1975, the Commanding General approved the FSM’s request for discharge and directed the issuance of a Undesirable Discharge Certificate.  On 9 December 1975, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of service with a discharge UOTHC.  He had completed 11 months and 25 days of creditable active service. 
 
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.  

There is no evidence that the FSM applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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 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.

2.  The FSM'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.

3. While the Board is empathetic, the applicant has submitted neither probative evidence nor a convincing argument in support of her request.  An upgrade is not automatic and the merits of the case do not warrant an upgrade. 

4.  Therefore, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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

__fe____  __kak___  __ra____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026554	
SUFFIX		
RECON		
DATE BOARDED	20000215	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	1975/11/22	
DISCHARGE AUTHORITY	AR635-200, chapter10 .  .  .  .  .  	
DISCHARGE REASON	A71.000	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.