MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  22 August 2000
	DOCKET NUMBER:  AR2000040074

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		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 records be corrected to show that he received a general discharge.

APPLICANT STATES: That he received a court ordered general discharge under honorable conditions.

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

On 12 September 1967, he enlisted in the Army.  He completed his required training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

During the period 2 August 1968 through 3 July 1969, he was convicted by a Special Court-Martial on 4 occasions of being absent without leave, breaking restriction, being absent from his place of duty, and for his failure to go to his place of duty.  His sentences included forfeiture of pay, confinement at hard labor, hard labor without confinement, restriction and reduction in grade.

On 9 July 1969, the unit commander preferred charges against the applicant for disobeying a lawful order and disobeying a lawful command on 8 September 1969.  He advised the applicant of his rights.

In an undated letter, after consulting with legal counsel, the applicant voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He acknowledged that he was guilty; that he could receive a discharge under other than honorable conditions (UOTHC); that he understood the effects of receiving such a discharge; that he had consulted with legal counsel.  Further that he had been fully advised of the nature of his rights and the facts, which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty.  In addition, he also indicated he had been advised of the possible defenses, which appeared to be available at the time and the maximum permissible punishment, if he were found guilty.

His command recommended approval of his request.

On 12 August 1969, a physical examination cleared the applicant for separation.

On 10 September 1969, the appropriate separation authority approved his separation with a UOTHC discharge, issuance of an Undesirable Discharge Certificate and directed his reduction to pay grade E-1.

On 17 September 1969, the applicant was discharged, with a UOTHC discharge, under the above-cited regulation.  His DD Form 214 (Armed Forces of the Untied States Report of Transfer or Discharge) indicates he had 1 year, 6 months and 15 days of creditable service and 173 days of lost time.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10, of that regulation, provided, in pertinent part, that a member who had committed an offense of offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time of the applicant’s separation, the regulation provided for an UOTHC discharge with the issuance of an Undesirable Discharge Certificate.

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 chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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 this 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

__ew__  ___mt__  __kl___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040074	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000822	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.110	Disch up	
2.		
3.		
4.		
5.		
6.