MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 June 2000
	DOCKET NUMBER:   AR2000038270

	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. Orville W. Troesch, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Margaret V. Thompson		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 desires the Board to have mercy on him and upgrade his discharge because he is in need of medical assistance and because he was young and immature at the time he served and has lived with his mistakes for 23 years. 

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

He enlisted in Niagara Fall, New York  on 9 February 1976 for a period of 3 years and training as a tactical wire operations specialist.  He was almost 22 years of age at the time of his enlistment.

He successfully completed his training and was transferred to Neu Ulm, Germany on 23 June 1976.  He departed on ordinary leave to the United States and was scheduled to return to his unit on 31 December 1976 and failed to do so.

He was reported as AWOL effective 31 December 1976 and remained absent until he was apprehended by military authorities in Rochester, New York on 25 May 1977 and was returned to military control at Fort Dix, New Jersey.

The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, the records do contain a duly constituted report of separation (DD Form 214) which shows that he was discharged under other than honorable conditions on 22 June 1977 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by
court-martial.  He had served 11 months and 13 days of total active service and had 151 days of lost time due to AWOL.

There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitation.

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.  A condition of such a request is that the individual concerned must admit guilt to the charges against them or offenses of a lesser included offense which is authorized to adjudge a bad conduct or dishonorable discharge.  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.  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 also be presumed that 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

__mvt___  __owt___  __kan ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038270	
SUFFIX		
RECON		
DATE BOARDED	2000/06/15	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1977/06/22	
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.