MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 October 2000
	DOCKET NUMBER:   AR2000040858

	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. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Allen L. Raub		Member	
	Ms. Brenda F. Hirschi		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 to honorable.

APPLICANT STATES:  In effect, that his discharge was unjust because he was never tried by a court-martial, never appeared before a judge, never had the opportunity to face his accusers, and was never given a chance to talk to anyone about his problems.  He further states that he was under the impression that he would be entitled to receive his benefits with the discharge he was receiving and has since discovered that such is not the case.  He continues by stating that the discharge has ruined his life, that he does not feel it fair that he risked his life for his country, and that he was a proud soldier who has been treated poorly by not being able to receive medical treatment for his service connected disabilities as well as other benefits.

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

He enlisted in Denver Colorado on 31 August 1977 for a period of 3 years, training as a supplyman, and assignment to Fort Carson, Colorado.  He completed his training and was assigned to Fort Carson.  He was promoted to the pay grade of E-3 on 22 November 1977.

On 21 May 1978 the applicant’s commander informed him that he was considering whether he should be punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for failure to go to his place of duty at the prescribed time during the period of 23 January to 23 February 1978. 

On 3 June 1978 the applicant went absent without leave (AWOL) and remained absent until he was apprehended by military authorities in Colorado Springs, Colorado on 6 July 1978.  He was returned to Fort Carson and charges were preferred against him for the AWOL offense and for failure to go to his prescribed place of duty at the prescribed time during the period of 23 January to 23 February 1978.

After consulting with counsel on 12 July 1978, the applicant submitted a request for discharge for the good of the service, in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  As part of his request he stated that he was guilty of the charges against him or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge.  He further stated he was making the request of his own free will and had not been subjected to coercion by any person.  He also stated that he understood the implications attached to his request, the stigma attached to a discharge under other than honorable conditions, and the fact that he may be deprived of all benefits normally afforded to veterans under both State and Federal laws. 
The applicant also acknowledged his counseling by his legal counselor and indicated that he was briefed on the procedures for requesting an upgrade of his discharge and the likely possibility that his discharge would not be upgraded at a future date should he elect to apply. 

The applicant elected to submit a statement in his own behalf whereas he asserted, in effect, that he was not suited for military life and that if he were discharged under the provisions of chapter 10, Army Regulation 635-200, he had already talked to a prospective employer at a paper company and explained that he was going to be discharged with a bad discharge and there would be no problem.  He also indicated that he wanted out of the Army and did not want to be rehabilitated.

The unit commander recommended approval and indicated that he had read charges to the applicant in anticipation of administering nonjudicial punishment against him for failure to go to his place of duty at the prescribed time just prior to his departing AWOL.  He also indicated that given the applicant’s attitude and record, he would never complete his service and that rehabilitation would be ineffective.  

The appropriate authority approved his request on 27 July 1978 and directed that he be discharged under other than honorable conditions.

Accordingly, the applicant was discharged under other than honorable conditions on 17 August 1978 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  He had served 10 months and 14 days of total active service and had 33 days of lost time due to AWOL.

There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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.  Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge.  A discharge under other than honorable conditions is normally considered appropriate and there are no automatic provisions for an upgrade of such a 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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  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.  Therefore, it appears that 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.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

4.  The applicant’s contentions have been noted by the Board; however, they are not supported by the evidence of record and are not sufficiently mitigating when compared to his otherwise undistinguished record during a relatively short period 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 this 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

__eja____  ___alr___  ___bfh __  DENY APPLICATION

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

INDEX

CASE ID	AR2000040858	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/10/31	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1978/08/17	
DISCHARGE AUTHORITY	AR635-200, CH10	
DISCHARGE REASON	A70.00/GOOD OF THE SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/a70.00/GD OF SVC	
2.		
3.		
4.		
5.		
6.