MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            21 November 2000
	DOCKET NUMBER:   AR2000043008

	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. Thomas A. Pagan		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Thomas E. Shaughnessy, 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 a general discharge.

APPLICANT STATES:  In effect, that he was not properly informed of the effect that a discharge under other than honorable conditions would have on him and that if he had known, he would not have signed the papers requesting to be discharged.  He goes on to state that he served in Vietnam and was then sent to Germany.  It was at this time that things started to go wrong and the charges that were preferred against him were false.  He also states that while he did have drugs in his possession, he was just holding them for an American girl whom he had previously met in the park.  In addition, the weapon for which he was charged with possessing was not his and that he was simply set-up by law enforcement officials and charged with an offense for which he was not guilty.  He further states that after 30 years he has suffered enough for something he did not do and he now needs an upgrade of his discharge to obtain medical benefits from the Department of Veterans Affairs.

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

He enlisted in Springfield, Illinois on 15 August 1969 for a period of 3 years.  He successfully completed his training and was transferred to Vietnam on 13 January 1970 for duty as a telephone switchboard operator.  He was promoted to the pay grade of E-3 on 21 January 1970.

On 21 October 1970 nonjudicial punishment was imposed against the applicant for violating curfew, being out of uniform, and for failure to be at his place of duty. His punishment consisted of a forfeiture of pay, extra duty and restriction. 

On 23 October 1970 NJP was imposed against him for possession of 6.3 grams of marijuana.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay and restriction.

He departed Vietnam on 3 December 1970 and was transferred to Germany on 21 January 1971.

On 13 April 1971 NJP was imposed against him for failure to maintain control and possession of his assigned weapon.  His punishment consisted of a forfeiture of pay and extra duty.

On 5 August 1971 charges were preferred against the applicant for being absent from his place of duty, for unlawfully carrying a concealed weapon (zip gun), possession of an illegal weapon, and possession of 7.22 grams of marijuana in the hashish form.  The charges were referred to the applicant on 10 August 1971. 

On 6 August 1971 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 indicated that he had not been subjected to coercion with respect to the request for discharge and that he had been advised of the implications attached to it.  He further stated that he understood that if he was issued an undesirable discharge he might be deprived of many or all Army benefits as well as veterans benefits administered under State and Federal laws.  He elected not to submit a statement in his own behalf. 

The appropriate authority (a major general) approved the request on 18 August 1971 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 31 August 1971 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years and 16 days of total active service.

There is no evidence in the available records to show 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.

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 either the evidence submitted with his application or the evidence of record.  Therefore, his contentions are not sufficiently mitigating when compared to the seriousness of his offenses and his otherwise undistinguished record 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

___tes __  ___ra ___  ___tap __  DENY APPLICATION

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

INDEX

CASE ID	AR2000043008	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/11/21	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/08/31	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	GD OF THE SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.