MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 February 2001
	DOCKET NUMBER:   AR2000048174

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Donald P. Hupman, 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:  That he has suffered the consequences of an undesirable discharge too long and that his counsel at the time told him that the forms he signed would be changed to a general discharge after 12 months in civilian life.  He further states that he has waited 25 years, is now 47 years of age, that he was very young at the time of his service and that he is in need of medical assistance.  He goes on to state that he desires to receive assistance from the Department of Veterans Affairs (VA) because he is suffering from poor health.  He also states that he would like his name cleared, the opportunity for a good life, and a chance to be proud again. 

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

He enlisted in Charleston, West Virginia on 21 December 1972 for a period of 4 years, a cash enlistment bonus and assignment to Fort Riley, Kansas (1st Infantry Division).  He completed his basic training at Fort Jackson, South Carolina and was transferred to Fort Riley on 27 March 1973 for training and assignment as an infantryman.

On 7 June 1973 nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 29 May to 30 May 1973.  His punishment consisted of a reduction to the pay grade of E-1 (suspended), a forfeiture of pay and extra duty.  The suspended punishment regarding his reduction was vacated on 23 July 1973.

The applicant was convicted by a special court-martial at Fort Meade, Maryland on 14 January 1974 of being AWOL from 13 July 1973 to 20 December 1973.  He was sentenced to confinement at hard labor for 3 months, a forfeiture of pay and reduction to the pay grade of E-1.  He was transferred to the Army Retraining Brigade at Fort Riley to serve his sentence.  On 28 March 1974, the Army Retraining Brigade published orders that suspended the unexecuted portion of his sentence.  The applicant was then transferred to Fort Campbell, Kentucky. 

On 6 June 1974, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of a suspended reduction to the pay grade of   E-1, a forfeiture of pay (suspended), restriction (suspended) and extra duty for 5 days.

The applicant was arrested by civil authorities in Campbellsville, Kentucky on 1 January 1975 for possession of marijuana.  He was returned to military control on 6 January 1975.

On 10 January 1975, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of restriction and extra duty.

On 13 February 1975, the applicant was apprehended by civil authorities in LaGrange, Georgia and was returned to his unit on 28 February 1975.  He again went AWOL on the date of his return to military control and remained absent until he was returned to military control at Fort Meade, Maryland on 27 June 1975 and charges were preferred against him.

A complete record of the facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his records do show that on 11 July 1975, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He elected to submit a statement in his own behalf, whereas he asserted that he did not like the treatment he received after being released from the Army Retraining Brigade, that he could not adjust to the treatment, that he wanted out of the Army and that he wanted out even if it meant that he would receive an undesirable discharge.

The appropriate authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate.  Accordingly, he was discharged under other than honorable conditions on 2 October 1975, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 8 months and 8 days of total active service and had 399 days of lost time due to AWOL and confinement.

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.  A condition of such a request is that the request must be voluntary and the individual must indicate that they have not been subjected to coercion of any kind in regard to submitting such a request.  Additionally, the individual must acknowledge guilt to the offenses for which they are charged or to lesser included offenses that would warrant a punitive discharge.  A discharge under other than honorable conditions was then and currently is normally considered appropriate.  There were not then nor are there now any automatic provisions to upgrade such discharges.

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, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  It appears that the applicant 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, especially considering the seriousness of the charges against him and his otherwise undistinguished record of service.

4.  The applicant’s contentions have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service, his record of extensive absences and his disciplinary record during a relatively short period of service. 

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

___jhl___  ___gp___  __dh____  DENY APPLICATION

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

INDEX

CASE ID	AR2000048174	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/02/08	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/10/02	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.