MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 September 2000
	DOCKET NUMBER:   AR2000037706

	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	
	Ms. Margaret K. Patterson		Member	
	Mr. Elzey J. Arledge, 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 an honorable discharge. 

APPLICANT STATES:  In effect, that after having served in Vietnam he had nothing but problems.  He goes on to state that he has received psychiatric treatment, been through three divorces and a number of jobs and is trying to receive a diagnosis for post-traumatic stress disorder from the Department of Veterans Affairs.

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

He enlisted on 26 August 1968 for a period of 3 years and successfully completed his training.  He was transferred to Vietnam on 7 July 1969 for duty as a general vehicle repairman and received the Vietnam Service Medal and the Republic of Vietnam Campaign Medal for his service in Vietnam.  He served in Vietnam until he was transferred to Germany on 28 August 1970.  He continued to serve until he was honorably discharged on 29 March 1971 for the purpose of immediate reenlistment.  He reenlisted with an approved waiver for 4 days of AWOL, for a period of 3 years. 

On 1 May 1971 he went AWOL and remained absent until he was returned to military control on 24 June 1971.  He again went AWOL and remained absent until he was apprehended by the Federal Bureau of Investigation (FBI) on 26 April 1974 and charges were preferred against him.

Although the specific facts and circumstances surrounding his discharge are not present in the available records, 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 28 June 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 5 years, 7 months, and 7 days of total active service and had 1024 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.  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

__eja____  __mkp __  __rvo ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037706	
SUFFIX		
RECON		
DATE BOARDED	2000/09/14	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/06/28	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/GD OF SVC	
2.		
3.		
4.		
5.		
6.