MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            13 January 2000
	DOCKET NUMBER:   AR1999026808

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Margaret V. Thompson		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.

APPLICANT STATES:  In effect, that he desires to have his discharge upgraded to a more favorable discharge.  In support of his application he submits four letters from his siblings and one letter from a family friend that all attest that he returned from Vietnam a changed man who drank a lot and exhibited behavior that was different from when he departed.  They also indicate that his father had suffered a stroke and that he did not handle it well, that he began to have nightmares after returning from Vietnam, and that he has since been injured and needs medical assistance.

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

The applicant was inducted with a moral waiver in Montgomery, Alabama on 4 June 1969.  He was granted a moral waiver for grand larceny at the age of 18, highway drunkeness and reckless driving at the age of 23, and highway intoxication at the age of 24.  He was 25 years of age at the time of his induction.

He successfully completed his training and was transferred to Vietnam on 31 October 1969 for duty as a field artillery cannoneer.  On 13 July 1970 he was awarded a secondary military occupational specialty of a cook.  He was awarded the Vietnam Service Medal and the Republic of Vietnam Campaign Medal for his service in Vietnam.

On 6 January 1970 nonjudicial punishment was imposed against the applicant for sleeping on his sentinel post.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

 He departed Vietnam on 18 October 1970 and was transferred to Fort Rucker, Alabama.  He went AWOL on 12 February and remained absent in a deserter status until he was apprehended by civil authorities and was returned to military control at Fort Benning, Georgia.

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214) which shows that he was discharged on 30 October 1972 for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 10 months, and 22 days of total active service and had 551 days of lost time due to AWOL (112 days before his expiration of term of service (ETS) and 439 days subsequent to his ETS). 
 
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.  Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a 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 appears 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.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

4.  The applicant’s contentions have been noted by the Board but are not sufficiently mitigating to warrant relief when compared to the available facts and circumstances, the extensive length of his absence, and his otherwise undistinguished record of service.

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

___mvt__  __ewl___  ___ew___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026808	
SUFFIX		
RECON		
DATE BOARDED	2000/01/13	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1972/10/30	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689/good of svc	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689 	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.