MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            6 February 2001 
	DOCKET NUMBER:   AR2000048427

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas Lanyi		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:  In effect, that his undesirable discharge be upgraded to at least a general discharge.

APPLICANT STATES:  In effect, that clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge, that under current standards he would not receive the type of discharge he received, that he received decorations and awards and had combat service, that his record of promotions show he was a good soldier, that he had a prior honorable discharge, and that he has been a good citizen since his discharge.

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

He initially served in the Navy from 24 October 1968 until he was honorably discharged on 17 July 1970.

He enlisted in the Regular Army in Houston, Texas on 18 February 1971 for a period of 4 years.  He completed his training, was advanced to the pay grade of E-4 on 9 September 1971 and was transferred to Vietnam on 26 October 1971 for duty as an aircraft repairman.  

The actual record of proceedings of nonjudicial punishment (DA Form 2627) are not present in the available records; however, his records contain orders which show that nonjudicial punishment was imposed against him on 22 December 1971, which resulted in a suspended reduction to the pay grade of E-3. 

The records also show that the applicant was reported absent without leave from 25 July 1972 until he surrendered to military authorities at Oakland Army Base, California on 20 September 1972.  The record is silent as to punishment imposed.

Nonjudicial punishment was again imposed against him on 27 January 1973 which resulted in a forfeiture of pay.

The applicant departed Vietnam on 6 March 1973 and was transferred to Fort Lewis, Washington.  While at Fort Lewis the applicant went AWOL from 1 May to 16 May 1973, from 23 July to 26 July 1973 and from 9 August to 10 August 1973. The record is silent as to any punishment imposed for those AWOL offenses.

However, on 2 November 1973 nonjudicial punishment was imposed against him for misconduct.  His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay.

The applicant again went AWOL from 8 November 1973 until he was apprehended by Federal Bureau of Investigation (FBI) officials on 16 June 1974. He again went AWOL from 19 July 1974 until 23 May 1975, when he was returned to military control at Fort Lewis, was placed in pre-trial confinement and charges were preferred against him.

On 4 June 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 acknowledged that he understood the consequences of such a request and the possible consequences he could experience in civilian life with a discharge under other than honorable conditions.

The applicant’s request for discharge was approved and he was discharged under other than honorable conditions on 3 July 1975, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 3 years and 10 days of active service during his current enlistment and had 591 days of lost time due to AWOL and confinement.  His decorations and awards included the Vietnam Service Medal, the National Defense Service Medal, and the Republic of Vietnam Campaign Medal.

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, both, at the time of his discharge and currently, 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 discharge under other than honorable conditions was then and currently 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.  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, his extensive absences, the fact that he was a prior service soldier who reasonably would be expected to be aware of the consequences of his actions 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 otherwise undistinguished record of service and the available facts of his case.

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

___rvo __  __wtm___  ___tl  ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000048427	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/02/06	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/07/03	
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.