MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           16 May 2000       
	DOCKET NUMBER:   AR2000038946

	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	
	Ms. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Lester Echols		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 (UOHC) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was given the choice of receiving additional training or going home, and his decision to go home resulted in an UOHC discharge; and, that the characterization of service is unfair and unjust. 

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

On 16 August 1976 the applicant enlisted in the Regular Army for a period of 3 years.  He had prior honorable active service with the Oklahoma Army National Guard and completed basic combat training at Fort Polk, Louisiana in 1975.  He reported to Fort Sill, Oklahoma, for advanced individual training (AIT) in military occupational specialty 13E (Cannon Fire Direction Specialist).  He did not complete AIT.

The applicant’s record documents that the highest permanent rank he held on active duty was private/E-2 and the record contains no documented acts of valor, achievement, or service warranting special recognition.

On 17 September 1976 the applicant departed AWOL.  He was dropped from the roles of the U.S. Army as a deserter on 16 October 1976.

On 17 October 1976 the unit commander notified the applicant’s wife that her husband had been dropped from the roles of the U.S. Army as a deserter and encouraged her to urge the applicant’s return to military control.

On 3 February 1977 the applicant surrendered to military authorities at Fort Sill, Oklahoma, and was attached to the Special Training Brigade.

On 14 February 1977 he voluntarily requested discharge under the provisions of chapter 10, AR 635-200 for the good of the service in lieu of trial by court-martial.  The applicant consulted with defense counsel and indicated that he understood the ramifications of his request for discharge and the type of characterization of service he would receive.

The applicant was separated on 1 March 1977 under the provisions of AR 635-200, chapter 10, with an UOHC.  He was credited with 2 months of active military service, and 139 days lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that 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 the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOHC discharge is normally considered appropriate. 

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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.  There is no indication that the request was made under coercion or duress.

2.  The evidence of record shows that the applicant admitted guilt to the stipulated offense under the UCMJ, he consulted with defense counsel, and he was properly advised of the reason for his discharge and the characterization of service he would receive for his offenses.

3.  There is no evidence in the record nor has the applicant submitted evidence to support his contention that he was given the “choice of receiving additional training or going home”.  The record shows that the applicant departed AWOL before completing AIT and that, after surrendering to military authorities, he voluntarily requested discharge to avoid trial by court-martial.

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 the aforementioned 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

__AAO __  __VBC__  ___LE___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038946	
SUFFIX		
RECON		
DATE BOARDED	20000516	
TYPE OF DISCHARGE	UOHC	
DATE OF DISCHARGE	19770301	
DISCHARGE AUTHORITY	AR 635-200, C10	
DISCHARGE REASON	144.7100.0000	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES        1.  	144.9231.0000	
2.  	144.9235.0000	
3.  	144.0100.0000	
4.		
5.		
6.