MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 October 2000
	DOCKET NUMBER:   AR2000037094

	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. Ernest W. Lutz, Jr.		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Tracey L. Pinson		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 discharge under other than honorable conditions be upgraded.

APPLICANT STATES:  In effect, that he did not request an upgrade of his discharge sooner because he thought he had to wait for 15 years before doing so.

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

The applicant was inducted on 17 August 1970 and served until he was honorably released from active duty on 10 March 1971 and was transferred to the United States Army Reserve (USAR) Control Group (Annual Training).

On 16 April 1974 he enlisted in the Regular Army for a period of 3 years and assignment to Fort Hood, Texas.  He was promoted to the pay grade of E-5 on 30 October 1975.

On 25 February 1977 nonjudicial punishment was imposed against him for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-4, a forfeiture of pay, and restriction.

On 29 April 1977 he reenlisted for a period of 6 years and assignment to Germany.  He was transferred to Germany on 1 August 1977 and was again promoted to the pay grade of E-5 on 13 June 1978. 

On 14 May 1979 the applicant went AWOL from Germany and remained absent from his place of duty until he surrendered to military authorities at Fort Bragg, North Carolina on 17 July 1984 and charges were preferred against him.

After consulting with counsel the applicant submitted a request for 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 his request he acknowledged that he was submitting the request without coercion and of his own free will, that he understood the implications attached to such a request, and that he understood the possible effects of a discharge under other than honorable conditions.  He also stated that he did not desire further rehabilitation and did not desire to perform further military service.

The applicant’s commander interviewed the applicant and indicated that the applicant conveyed to him that he (the applicant) had went AWOL because his previous girlfriend terminated their relationship and he could not deal with the emotions.

The appropriate commander approved his request on 12 September 1984 and directed that he be discharged under other than honorable conditions.
Accordingly, he was discharged under other than honorable conditions on 21 September 1984 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 6 years, 8 months and 27 days of total active service and had approximately 1,891 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 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.  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, 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.  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.

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____  ___el ___  ___tp ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037094	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/10/19	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1984/09/21	
DISCHARGE AUTHORITY	AR635-200, CH10	
DISCHARGE REASON	GOOD OF THE SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/GOOD OF THE SVC	
2.		
3.		
4.		
5.		
6.