MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 May 2000
	DOCKET NUMBER:   AR2000036351

	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		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		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 his undesirable discharge be upgraded to a more favorable discharge.

APPLICANT STATES:  In effect, that his discharge was unjust because he still suffers flashbacks and paranoia due to Vietnam, that he has been diagnosed a schizophrenic, and that he was exposed to “Agent Orange.”  He also states that it is an injustice for him to continue to suffer the consequences of a bad discharge and that under current standards he would not have received the type of discharge he received.  He also states consideration should be given to the fact that his conduct and efficiency ratings were good, that he received decorations and awards, he had combat service and was wounded in action, that his record of nonjudicial punishments were for minor offenses, that he has been a good citizen since his discharge and that his inability to serve was impaired by his youth, immaturity, and personal problems.  Additionally, he states that the dates of his induction and discharge are incorrect.

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

He was inducted in Oakland, California at the age of 21 on 14 January 1970 and was transferred to Fort Ord, California to undergo his training. 

He completed his basic training on 22 March 1970 and remained at Fort Ord to undergo his advanced individual training (AIT).  

On 17 April 1970 nonjudicial punishment was imposed against him for being AWOL from 21 March to 12 April 1970.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

He then began a series of being AWOL from 20 May to 24 May 1970, 2 June to 25 June 1970, 3 July to 17 August 1970, 24 August to 23 December 1970 and 11 January to 13 January 1971. 

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records do contained a duly constituted report of separation (DD Form 214) signed by the applicant which shows that on 22 January 1971 he was discharged under other than honorable conditions 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 4 months and 28 days of total active service and had 221 days of lost time due to AWOL.

There is no indication 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 both under the standards if effect at that time as well as today’s standards.

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 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.  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; however, they are not supported by the evidence submitted with his application or the evidence of record.  Accordingly, they are not sufficiently mitigating when compared to his extensive absences and his otherwise undistinguished record of service during a relatively short period.

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

___cmf __  __fe ____  ___rjw __  DENY APPLICATION

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

INDEX

CASE ID	AR2000036351	
SUFFIX		
RECON		
DATE BOARDED	2000/05/17	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/01/22	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/GD OF SVC	
2.		
3.		
4.		
5.		
6.