MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            16 November 2000
	DOCKET NUMBER:   AR2000041982

	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. Walter T. Morrison		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Martha E. Schuler		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 or a general discharge.

APPLICANT STATES:  That he should never have been accepted in the Army because he tested three times and failed each time.  He states that a judge told him that he had to either enlist in the Army or go to jail and his recruiter told him that he would give him the answers to the test to help him get into the Army.  He further states that he did exactly what his recruiter told him to do and wrote the answers to the test questions in his hand.  He goes on to state that if he had not cheated he would never have passed the test.  He states that he told his chain of command that he cheated on the test but no one would listen to him so he went AWOL and “messed up” his life.  He concludes by stating that he would like to have a second chance in life without having the stigma of an undesirable discharge hanging over his shoulders.

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

On 2 October 1972, he enlisted in the Army for 2 years in the pay grade of E-1.  

Nonjudicial punishment was imposed against the applicant on 21 November 1972 for being AWOL from 5 November until 17 November 1972.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

Charges were preferred against the applicant on 24 December 1972.  He was charged with being AWOL from 23 November 1972 until he was apprehended by civil authorities on 12 January 1973.  

The applicant was notified that charges were pending against him for being AWOL.  On 5 February 1973, after consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial.  Along with his request for discharge, the applicant submitted a statement in his own behalf indicating that he had been advised of his right to trial and that he realized that there may be substantial prejudice attached to his discharge if his was furnished an undesirable discharge.  He stated that he hated the Army and that he would not adjust to military life.  He also stated that he had problems at home with his wife and daughters and he wanted to be home to support them.

The appropriate authorities approved the request for discharge on 8 February 1973.  Accordingly on 20 February 1973, the applicant was discharged 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 completed 2 months and 5 days of total active service and he had 63 days of lost time due to AWOL.  He was furnished an Undesirable Discharge Certificate.

There is no evidence of record that shows 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 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.

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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not substantiated by the evidence of record.  The records clearly show that the applicant went AWOL twice.  He submitted a request for discharge because he hated the Army and would not adjust to military life.

4.  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.

5.  He 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.

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

___ja ___  ___mes__  __wtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041982	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/11/16	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1973/02/20	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  708	144.7000	
2.		
3.		
4.		
5.		
6.