MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 August 2000
	DOCKET NUMBER:   AR2000035191

	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. Deborah S. Jacobs 		Chairperson	
	Ms. Karol A. Kennedy 		Member	
	Mr. Ernest W. Lutz Jr.		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 general under honorable conditions.

APPLICANT STATES:  That the advice given to him by a military legal officer to not accept a court-martial was not in his best interest.  In support of his request, the applicant submits a copy of the letter which he submitted to the Army Discharge Review Board (ADRB) in May 1977.

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

He enlisted on 24 June 1974 and, after training, was assigned to Fort Riley, Kansas.

On 2 May 1975, the applicant was administered nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 17 April 1975 to 21 April 1975.

On 16 July 1975, the applicant was administered NJP for failure to report to his appointed place of duty.

On 8 September 1975, court-martial charges were preferred against the applicant for being absent from duty on 23 August 1975, AWOL from 4 September 1975 to 8 September 1975, and willfully and knowingly making a false entry on an official document.  On 24 October 1975, he consulted with 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.  In so doing, he acknowledged that he was guilty of the charges against him which authorized the imposition of a bad conduct or dishonorable discharge, and added that he had no desire for rehabilitation or further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He declined to submit a statement in his own behalf.

On 17 November 1975, the applicant was administered NJP for AWOL from 22 September to 23 September 1975, and failing to report to his appointed place of duty.

On 24 November 1975, he received NJP for two specifications of AWOL, from 14 October to 15 October 1975 and from 28 October to 17 November 1975, and for failing to report to his appointed place of duty.

Also on 24 November 1975, the separation authority, a major general, approved the applicant’s request for discharge in lieu of trial by court-martial and directed that he be issued an Undesirable Discharge Certificate.

The applicant was discharged on 18 December 1975 with 1 year, 4 months and 
1 day of creditable service and 54 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.

On 7 August 1978, 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.  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 this requirement.

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

__dsj___  __kak____  __ewl ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000035191	
SUFFIX		
RECON		
DATE BOARDED	20000801	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19751218	
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.