MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 December 2000
	DOCKET NUMBER:   AR2000043488

	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. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Harry B. Oberg		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 discharge.

APPLICANT STATES:  In effect, that he deserves an honorable discharge because he served in the National Guard for 2 years with no disciplinary record of any kind and the undesirable discharge is an insult to the quality of his service.

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

The applicant enlisted in the Indiana Army National Guard (INARNG) on 28 August 1976 for a period of 6 years.  He successfully completed his active duty training as a field artillery cannon crewman and was returned to his National Guard unit on 20 January 1977.

On 13 March 1977 the applicant’s commander dispatched a warning letter to the applicant notifying him that he had unexcused absences from scheduled drills and that such action was punishable under the Uniformed Code of Military Justice.  He also informed the applicant that five unexcused absences would subject him to an involuntary call to active duty.

It appears, based on the evidence contained in the available records that he continued to miss drills and that on 9 March 1978 his commander requested that orders be published ordering the applicant to active duty.  There is no indication in the available records to show that the applicant attended any drills after completing his active duty training.

On 6 July 1978 orders were published which ordered the applicant to active duty at Fort Knox, Kentucky for a period of 20 months and 25 days, effective 23 August 1978.  

The applicant failed to report as ordered and was reported as absent without leave on 23 August 1978.  He remained absent until he was apprehended by civil authorities on 13 April 1979 in Indianapolis, Indiana and was returned to military control at Fort Knox, Kentucky.

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) which shows that he was discharged under other than honorable conditions on 30 May 1979, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 4 months and 23 days of total active service and had 293 days of lost time due to AWOL.

At the time of his application to this Board the applicant was incarcerated in a correctional facility in Indiana.
There is no indication in the available records to show that he 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.  Additionally, the individual must admit guilt to the offenses for which they are charged or a similar offense that is punishable with a bad conduct or dishonorable 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 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

___fe ___  ___lem__  ___hbo__  DENY APPLICATION

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

INDEX

CASE ID	AR2000043400	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/12/12	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1979/05/30	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/GD OF SVC	
2.		
3.		
4.		
5.		
6.