MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           7 June 2000
	DOCKET NUMBER:   AR1999027530

	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. Carl W. S. Chun
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. James P. Stueve		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 honorable.

APPLICANT STATES:  That his discharge is inequitable.  He bases this contention on the following:  (1) “Parenthetical” (sic) consent for enlistment; (2) [prior] honorable discharge; (3) reenlistment; (4) undesirable discharge; (5) missing records; (6) failure to notify the applicant of a hearing; (7) Army Discharge Review Board’s (ADRB) hearing decision; (8) letter from US Army Reserve Components Personnel and Administration Center (RCPAC); (9) his original birth certificate.  In elaboration of the above points, he contends that, although he had parental consent when he enlisted at the age of 17, his reenlistment on 31 January 1973 was invalid because he was still only 17 and did not have parental consent to reenlist. He further contends:  that the Army Discharge Review Board (ADRB) proceedings in 1983 contain questionable clerical errors which invalidate the decision to deny an upgrade; that there was no mental status evaluation of an AWOL enlistee; that no military court-martial charges were ever preferred against him yet his commander recommended an undesirable discharge; and that the Army failed to properly notify him of his ADRB hearing date, but managed to inform him of the hearing after it had been held.

In support of his request, he submits documents indexed 1 through 10 to an attached cover sheet, and a self-authored legal brief.

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

He was born on 23 May 1955 and, at age 17 and with parental consent, enlisted in the Regular Army for 3 years on 30 May 1972.  Although there is no record of his reenlistment in his Military Personnel Records Jacket (MPRJ), the applicant submitted a copy of an Honorable Discharge Certificate, dated 30 January 1973, and a reenlistment order from Headquarters, 1st Cavalry Division, Fort Hood, Texas, showing that he reenlisted for 4 years on 31 January 1973.

On 13 November 1974, formal court-martial charges were preferred against the applicant for two specifications of AWOL from 15 May 1973 to 2 February 1974 and from 15 May 1974 to 5 November 1974.  On 18 November 1974, he consulted with legal counsel and voluntarily requested 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 acknowledged:  that he was guilty of the charges against him which authorized the imposition of a bad conduct or dishonorable discharge; that he did not desire rehabilitation or any further military service; and that he understood the nature and consequences of the undesirable discharge that he might receive.  He submitted a statement in his own behalf, essentially attributing his AWOL to his failure to adapt to the Army, stating that if his request for discharge was rejected, he would go AWOL again until finally released from the Army.

A 12 November 1974 report of medical examination indicated that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1, indicating no physical or mental limitations for duty.  In the report of medical history furnished by the applicant for the medical examination, he stated his health was “good.”  On 21 November 1974, the separation authority, a brigadier general, approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.

The applicant was discharged on 11 December 1974 at Fort Knox, Kentucky.  He had 1 year, 1 month and 18 days of creditable service and 515 days of time lost.

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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable discharge.

Army Regulation 601-280, then in effect, prescribed criteria governing the immediate reenlistment in the Regular Army of soldiers currently serving in the Active Army.  It stated in pertinent part that a soldier must not be less than 18 years of age in order to reenlist unless he or she was last separated with an honorable or general discharge

On 1 July 1983, the ADRB, in a unanimous decision, denied the applicant’s request for upgrade of his discharge.

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.

2.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

3.  Notwithstanding the applicant’s submission of a reenlistment order and an Honorable Discharge Certificate, there is no official evidence of record that a reenlistment contract (DD Form 4) had ever been executed.  All documents in the applicant’s MPRJ show an enlistment date of 30 May 1972, with an expiration of term of service date of 29 May 1975 (subsequently adjusted based on recorded lost time).

4.  Assuming that the Honorable Discharge Certificate and reenlistment order submitted by the applicant are valid, regulations then in effect provided an age waiver for reenlistment based on an honorable discharge.  The applicant’s reenlistment would have been valid had it occurred under those circumstances.

5.  A review of the ADRB proceedings reveals no “clerical errors” as alleged by the applicant.  The events that led to the applicant’s discharge are clearly defined in the proceedings and were instrumental in the Board’s decision to deny his request for upgrade.   His contention is therefore rejected.

6.  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.

7.  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

__mkp___  ___esc__  __jps____  DENY APPLICATION

    Carl W. S. Chun
    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999027530	
SUFFIX		
RECON		
DATE BOARDED	20000607	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19741211	
DISCHARGE AUTHORITY	AR635-200 CH10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.