MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 November 2000
	DOCKET NUMBER:   AR2000042438

	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:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Wilfred A. Hale, 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 discharge under other than honorable conditions be upgraded to an honorable or a general discharge.

APPLICANT STATES:  That he has been incarcerated in the New York State Correctional Services Facility participating in the Veterans Residential Program and he believes that under the circumstances, his discharge should be upgraded.

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

On 10 July 1976, he enlisted in the New York Army National Guard for 6 years in the pay grade of E-1.  He successfully completed his training as an infantryman.

On 30 August 1979, he was involuntarily ordered to active duty with an effective date of 19 October 1979.  

The applicant was AWOL from 19 October until he reported for active duty at Fort Dix, New Jersey on 28 October 1979.

He went AWOL again on 13 January 1980 and he remained absent until surrendering to military authorities on 24 March 1980.

The facts and circumstances pertaining to the applicant's discharge are not on file.  The Report of Transfer or Discharge, DD Form 214, indicates that the applicant was discharged on 25 April 1980, under other than honorable conditions, 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 only 6 months and 7 days of total active service and he had approximately 83 days of lost time due to AWOL.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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 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.

2.  The type of discharge directed and the reasons therefore appears to have been appropriate considering all the available facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, the evidence of record clearly shows that the applicant was AWOL for 83 days and he submitted a request for discharge for the good of the service in lieu of trial by court-martial.  His request for a chapter 10 discharge tends to show he wished to avoid trial by court-martial and the punitive discharge that he might have received.  Although he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

4.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

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

___jhk __  __mkp___  ___wh___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042438	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/11/28	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19800425	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  708	144.7100	
2.		
3.		
4.		
5.		
6.