MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 May 2000
	DOCKET NUMBER:   AR2000037335

	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. James E. Vick		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John P. Infante		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 a general discharge.

APPLICANT STATES:  In effect, that his periods of being AWOL had no effect on his ability to do his job and those minor infractions should not have resulted in such a drastic discharge.  He further states that he served in Korea and Vietnam and he considers himself a good soldier while he served.  He goes on to state that stateside duty was mentally difficult for him and that his being AWOL was not a reflection of his dislike for the service.  He also states that he was asked to resign or get out of the service and since he saw no future for himself, he accepted the offer; however, he did not foresee the difficulties he and his family would encounter with such a discharge.  He is now in dire need of medical assistance and desires to have his discharge upgraded so that he can receive medical assistance benefits and so that his children will have the pride of knowing that their father served their country honorably. 

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

He enlisted in Philadelphia, Pennsylvania with a moral waiver on 15 August 1966 for a period of 3 years.  He was charged with being AWOL on 14 November 1966; however, the record is silent as to any punishment imposed.  He completed his training and was transferred to Fort Eustis, Virginia for duty as a cook.  He was promoted to the pay grade of E-3 on 21 February 1967.

On 26 April 1967 nonjudicial punishment was imposed against him for being AWOL from 21 April to 24 April 1967.  His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay.

He was again charged with being AWOL from 1 June to 4 June 1967 and the record is silent as to any punishment imposed.  He was then transferred to Korea on 15 August 1967.  He remained in Korea until 5 January 1968 when he was transferred to Vietnam.  He arrived in Vietnam on 11 February 1968 and departed on 1 May 1968 for a hospital in Japan for surgery and subsequently to Walter Reed Army Medical Center (WRAMC) in Washington.  He remained at WRAMC until 24 May 1968 when he was transferred to duty at Fort Dix, New Jersey.

On 25 September 1968, he was convicted by a summary court-martial of being AWOL from 10 July to 22 July 1968, from 27 July to 6 August 1968, and 20 August to 24 August 1968.  He was sentenced to hard labor without confinement for 45 days and a forfeiture of pay.

On 19 February 1969 he was convicted by a special court-martial of being AWOL from 7 October 1968 to 20 January 1969.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.  He was transferred to the Army Retraining Brigade at Fort Riley, Kansas to serve his confinement.  

On 5 June 1969 he was convicted by a special court-martial of being AWOL from 17 March to 14 May 1969.  He was sentenced to confinement at hard labor for 4 months and a forfeiture of pay.

He again went AWOL on 28 July 1969 and remained absent until he was returned to military control by civil authorities on 21 October 1969, at which time charges were preferred against him. 

On 3 December 1969, 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.  He indicated in his request that he had not been subjected to coercion with respect to his request for discharge, that he understood the implications that were attached to such a request, that he understood that if he received a discharge under other than honorable conditions, he would be deprived of many or all Army benefits and might be ineligible for many or all VA benefits.  He also stated that he understood that he could expect to encounter substantial prejudice in civilian life as a result of an undesirable discharge.  

The appropriate authority approved his request  and directed that he be furnished with an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 11 December 1969 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 1 month, and 22 days of total active service and had 362 days of lost time due to AWOL.

On 20 June 1970 he applied to the Army Discharge Review Board (ADRB) contending that his discharge should be upgraded based on the medical problems he experienced while in the Army.  The ADRB granted the applicant the opportunity for a personal appearance before that board on 29 March 1972 and the letter of notification was returned undelivered.  There is no indication in the available records to show that the ADRB ever considered his case.

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.  The individual must also indicate that the request was done without any coercion from anyone and must explain that he understands the consequences of submitting such a request as well as the consequences of the type of discharge he might receive.  A request for discharge can only be accepted if it was voluntarily submitted by the individual concerned.  A discharge under other than honorable conditions is normally considered appropriate.

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, with no indication of violations of any of the applicant’s rights.

2.  The type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been noted by the Board.  Although the Board is sympathetic to his medical condition, it is not sufficiently mitigating to warrant relief in his case.  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.  Accordingly, 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.

4.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the seriousness of the charges against him and his otherwise undistinguished record of service. 

5.  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.

6.  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

___sk ___  __jev ___  ____jpi__  DENY APPLICATION

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

INDEX

CASE ID	AR2000037335	
SUFFIX		
RECON		
DATE BOARDED	2000/05/31	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1969/12/11	
DISCHARGE AUTHORITY	AR 635-200/CH10	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/GD OF SVC	
2.		
3.		
4.		
5.		
6.