MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 May 2000
	DOCKET NUMBER:   AR2000036460

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Mr. Christopher J. Prosser		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.

APPLICANT STATES:  In effect, that he deserves a discharge that will qualify him for veterans benefits because of his service in Vietnam.

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

He enlisted in Phoenix, Arizona on 29 August 1968 for a period of 3 years and training as a helicopter repairman.  He successfully completed his training and was transferred to Fort Stewart, Georgia on 12 February 1969.  

He remained at Fort Stewart until he was transferred to Vietnam on 27 July 1969. He was promoted to the pay grade of E-5 on 20 January 1970 and departed Vietnam on 26 July 1970.  He was transferred to Fort Carson, Colorado and arrived there on 3 September 1970. 

He went AWOL on 13 September 1970 and remained absent until he was returned to military control at Fort Ord, California on 21 April 1971.  He was convicted by a special court-martial on 21 May 1971 of being AWOL from 13 September 1970 to 21 April 1971.  He was sentenced to confinement at hard labor for 3 months (suspended for 6 months), reduction to the pay grade of E-1, and a forfeiture of pay.

He again went AWOL on 6 July 1971 and remained absent until he was returned to military control on 9 December 1971 and charges were preferred against him.

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 under other than honorable conditions on 25 January 1972 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 3 months, and 20 days of total active service and had 397 days of lost time due to AWOL and confinement.

There is no indication in the available records to show that the applicant ever 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 and there are no provisions for an automatic upgrade of such a 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.  In the absence of evidence of the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

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, possible incarceration, and having a felony conviction on his records if found guilty at a trial by court-martial.  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.  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.

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

___cjp___  __ja____  ___rvo___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036460	
SUFFIX		
RECON		
DATE BOARDED	2000/05/11	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1972/01/25	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/GOOD OF THE SVC	
2.		
3.		
4.		
5.		
6.