MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 September 2000
	DOCKET NUMBER:   AR2000041508

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Donald P. Hupman, Jr.		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 honorable.

APPLICANT STATES:  In effect, that he was mislead as to the type of discharge he would receive and contends that his injuries were the cause of his being absent without official leave (AWOL).  He also contends that he should receive an upgrade of his discharge because it is preventing him from receiving treatment at a Veterans Administration (VA) Hospital.

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

He enlisted in Columbia, Tennessee on 24 July 1973 for a period of 3 years and assignment to Fort Campbell, Kentucky.  He successfully completed his training and was assigned to Fort Campbell for duty as a light weapons infantryman. 

On 14 February 1974 nonjudicial punishment was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 4 April 1975 NJP was imposed against him again for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-2 (suspended for 60 days), a forfeiture of pay (suspended for 60 days), restriction (suspended for 60 days, and extra duty. 

The applicant went AWOL from 19 May to 21 May 1975; however, the record is void of any punishment imposed for that offense.

The applicant again went AWOL on 5 August 1975 and remained absent until he was apprehended by civil authorities on 9 October 1975 and was returned to military control.

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214) signed by the applicant which indicates that he was discharged under other than honorable conditions on 4 November 1975, under the provisions of Army Regulation
635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 1 month, and 6 days of total active service and had 67 days of lost time due to AWOL.

A review of the applicant’s medical records show that he underwent a medical and physical examination and was cleared for separation.  His records also show that he was diagnosed with planter’s warts in May 1975 and a sprained ankle. was given a temporary profile in June and July 1975 (respectively) for restricted duty.

There is no indication in the available records to show that the applicant ever 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 provisions for an automatic 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.  In the absence of evidence to the contrary, it must be presumed that 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, it must be presumed that 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 submitted with his application or the evidence of record.  Accordingly, they are not sufficiently mitigating when compared to his extensive absences and his otherwise undistinguished record of service during a relatively short period.

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

__emw __  __dh____  __rvo ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041508	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/09/28	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/11/04	
DISCHARGE AUTHORITY	AR635-200/ch10	
DISCHARGE REASON	689/gd of svc	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.