MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 August 2000
	DOCKET NUMBER:   AR2000040364

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		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:  That he was court-martialed for being AWOL.  He states that he spent 6 months in confinement and he was reduced to the pay grade of E-1.  He further states that he was promised an honorable discharge if he resigned and instead he was given an undesirable discharge.  He concludes by stating that he believes that he was the subject of racial discrimination  and given his outstanding record he requests the type of discharge that he was promised.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from alternate sources.

After completing 3 years, 11 months and 5 days of honorable service, he reenlisted in the Army for an indefinite period on 6 June 1950.

The facts and circumstances pertaining to the applicant's discharge are not on file.  The Report of Separation (DD Form 214) indicates that the applicant tendered his resignation on 10 October 1955, under the provisions of Army Regulation 615-367, for the good of the service in lieu of trial by court-martial.  He had completed 8 years, 8 months and 7 days of total active service and he had 213 days of lost time.  He was issued an Undesirable Discharge Certificate.

Army Regulation 615-367, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a of the regulation provided, in pertinent part, that an individual whose conduct has rendered him triable by court-martial for an offense punishable by dishonorable or bad conduct discharge may tender his resignation for the good of the service in lieu of trial by court-martial.  The resignation if accepted, will be accepted under conditions other than honorable, and the individual will be furnished 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.  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.

2.  His contentions have been noted by the Board.  However, there is no evidence in the available record nor has the applicant submitted any evidence that shows that he was discriminated against or promised an honorable discharge if he resigned.  The record clearly shows that he had 213 days of lost time and he tendered his resignation for the good of the service in lieu of trial by court-martial.  It appears that he wished to avoid the court-martial, the punitive discharge and the felony conviction that he might have received.  Therefore, he should not be allowed to change his mind at this late date.

3.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

4.  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

___sk ___  ___ja____  ___reb__  DENY APPLICATION

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

INDEX

CASE ID	AR2000040364	
SUFFIX		
RECON		
DATE BOARDED	2000/08/08	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19551010	
DISCHARGE AUTHORITY	AR 615-368	
DISCHARGE REASON	708	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  651	144.6300	
2.		
3.		
4.		
5.		
6.