MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  15 August 2000
	DOCKET NUMBER:  AR2000041962

	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. Thomas D. Howard		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Gail J. Wire		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 (UOTHC) be upgraded to general.

APPLICANT STATES:  He states he may collect a pension from the Department of Veterans Affairs due to his health.

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

On 3 March 1967, the applicant enlisted in the Regular Army.  He completed his required training and was awarded Military Occupational Specialty 36K (Field Wireman).

On 7 June 1967, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 2 to 3 June 1967 (2 days).  His punishment included a forfeiture of pay, restriction and extra duty.

On 25 October 1967, he accepted NJP under Article 15, UCMJ for being AWOL for the period 6 August to 5 September 1967 (30 days).  His punishment included a forfeiture of pay and extra duty.

On 20 March 1968, he was convicted by a Summary Court-Martial of being AWOL for the period 4 December 1967 to 4 March 1968 (90 days).  His sentence included confinement at hard labor (CHL) for 30 days and a forfeiture of pay.  He was actually confined for 31 days for unknown reasons.

On 6 May 1968, he was convicted by a Special Court-Martial of being AWOL for the period 13 to 20 April 1968 (8 days).  His sentence included CHL for 2 months and a forfeiture of pay (suspended).

On 13 August 1969, he was convicted by a Special Court-Martial of being AWOL for the period 6 July 1968 to 22 July 1969 (381 days).  His sentence included CHL for 6 months and reduction to pay grade E-1.

On 14 July 1970, a physical examination cleared the applicant for separation.

On 15 July 1970, the unit commander preferred charges against the applicant for being AWOL for the period 7 June to 6 July 1970 (30 days).

On 16 July 1970, 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 UOTHC discharge; that he understood the effects of receiving such a discharge.  He acknowledged that he had consulted with legal counsel and he had been fully advised of the nature of his rights, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if he were found guilty.

On 29 July 1970, the appropriate separation authority approved his separation with a UOTHC discharge and directed his reduction to pay grade E-1.

On 29 July 1970, he was discharged, with a UOTHC discharge, under the above-cited regulation.  His report of separation, which was prepared from temporary records, indicates he had 2 years, 3 months and 9 days of creditable service and 413 days of lost time.

The correct computation of his creditable service is 1 year, 4 months and 5 days with 741 days of lost time, based on AWOL and 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 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.

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

4.  The Board notes that the applicant was discharged with temporary records, and the correct computation of his creditable service should be 1 year, 4 months and 5 days with 741 days of lost time.  As in this case, however, it is not the Boards’ policy to adjust or alter an applicant’s record that would be detrimental. 

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

___th___  __ao____  ___gw___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041962	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000815	
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	Ch 10 upgrade	
2.		
3.		
4.		
5.		
6.