MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            6 July 2000
	DOCKET NUMBER:   AR2000038142

	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. Ernest M. Willcher		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 the only reason he went AWOL was because he was told that it was the only way for him to get out of the Army.

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

He enlisted in Los Angeles, California on 16 December 1971 for a period of 2 years.  He successfully completed his basic training and was transferred to Fort Monmouth, New Jersey on 10 March 1972 to undergo his advanced individual training (AIT). 

On 3 August 1972 nonjudicial punishment (NJP) was imposed against him for two specifications of failure to go to his place of duty.  His punishment consisted of extra duty for 7 days.

The applicant went AWOL on 21 August and remained absent until he was returned to military control at Fort Bragg, North Carolina on 7 November 1972 and charges were preferred against him.

He was convicted by a special court-martial on 9 January 1973 of being AWOL from 21 August to 7 November 1972.  He was sentenced to hard labor without confinement for 2 months, a reduction to the pay grade of E-1, and a forfeiture of pay.

On 2 March 1973, while at Fort Polk, Louisiana, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay.

The applicant went AWOL from 28 April to 3 May 1973 and again went AWOL on 10 May 1973 and remained absent until he was returned to military control at Davis Monthan Air Force Base, Tucson, Arizona on 24 October 1973.  He was then transported to Fort Ord, California, where charges were preferred against him. 

He was convicted by a special court-martial on 22 January 1974 of the AWOL charges and was sentenced to confinement at hard labor for 4 months (2 months suspended for a period of 6 months), and a forfeiture of pay.  He was transferred to the Army Retraining Brigade at Fort Riley, Kansas to serve his confinement.

On 29 April 1974 he was transferred to Fort Sill, Oklahoma to again undergo his AIT.  He again went AWOL from 23 July to 31 July 1974, from 9 August to 11 August 1974, and from 15 April to 15 May 1975. 

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), signed by the applicant, which shows that he was discharged under other than honorable conditions on 17 June 1975, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 4 months, and 8 days of total active service and had 286 days of lost time due to AWOL and confinement.

There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

A review of the applicant’s records also shows that he fraudulent enlisted in Kansas City, Missouri on 28 February 1978 for a period of 4 years, assignment to Korea, and a cash enlistment bonus.  He remained on active duty until he was released from military service on 27 April 1978, under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to fraudulent entry.

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 automatic provisions for an 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 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.  The applicant’s contentions have been noted by the Board.  However, given the seriousness of his offenses and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge.

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 that 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

___cmf__  ___ew___  ___jpi___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038142	
SUFFIX		
RECON		
DATE BOARDED	2000/07/06	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/06/17	
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.