MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 September 2000
	DOCKET NUMBER:   AR2000040365

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Mr. Hubert O. Fry Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Mr. Regan K. Smith		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 general under honorable conditions, due to hardship.

APPLICANT STATES:  That after serving 6 months at Fort Bragg, North Carolina, he submitted a request for reassignment to California so he could be near his family to help them with their many problems.  After his father was hospitalized 3 months later, he took a 30-day leave and never returned.  Two years later, the Army caught up with him.  The reason he never returned was his parents’ illnesses and hardships of them not being able to support themselves.  He deeply regrets the wrong decision he made, and forced himself to take full responsibility for his actions; and with that in mind, he continued his education and became an ordained minister.  In support of his request, the applicant submits supporting letters from his wife, his pastor and a member of the American Samoa House of Representatives.

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

He enlisted on 20 February 1973 and, after training, was assigned to Fort Bragg, North Carolina.

On 20 September 1973, the applicant was administered nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent from his appointed place of duty without proper authority.

On 18 December 1975, the applicant was formally charged with being absent without leave from 17 April 1974 to 15 December 1975.  He consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In so doing, he acknowledged that he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and added that he had no desire for rehabilitation or further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He declined to submit a statement in his own behalf.

On 30 January 1976, the separation authority, a major general, approved the request and directed the applicant be issued an Undesirable Discharge Certificate.

The applicant was discharged on 13 February 1976 at Fort Ord, California.  He had 1 year, 2 months and 20 days of creditable service and 639 days of time lost.

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 discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable discharge.

On 31 August 1981, the Army Discharge Review Board, in a unanimous decision, denied the applicant’s request for upgrade of his 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.  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 applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

3.  While the Board has taken cognizance of the applicant’s good post-service conduct and accomplishments, these factors alone do not warrant the relief requested.

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

___hof__  __jpi____  __rks ____  DENY APPLICATION

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

INDEX

CASE ID	AR2000040365	
SUFFIX		
RECON		
DATE BOARDED	20000919	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19760213	
DISCHARGE AUTHORITY	AR635-200 CH10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.