MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            22 March 2001
	DOCKET NUMBER:   AR2000049698

	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. Shirley L. Powell		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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 when he got into trouble he was young and impressionable and easily influenced by others who were not the kind of friends he needed to have.  He goes on to state that at the time of his arrest, there was no proof that the drugs were his but it was assumed they were because he was there.  However, the drugs were his.  He further states that he is now a minister and has led a good life since his discharge with no problems with drugs of any kind.  He continues by stating that he was embarrassed for anyone to know he had been discharged under other than honorable conditions  but he is now in need of medical help from the Veterans Hospital.  In support of his application he submits five letters from members of his church.

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

He enlisted in Shreveport, Louisiana at the age of 22 on 4 December 1972 for a period of 3 years, training as a medical care specialist and assignment to Korea. He successfully completed his basic training at Fort Polk, Louisiana and was transferred to Fort Sam Houston, Texas to undergo his advanced individual training (AIT).  He failed to complete his AIT and was transferred to Fort Leonard Wood, Missouri to undergo training as a combat engineer.  He failed to complete that training as well and was transferred to Fort Knox, Kentucky on 25 June 1973 to undergo AIT as an armament maintenance specialist.

On 2 July 1973 he went absent without leave (AWOL) and remained absent until he returned to military control on 17 July 1973.  Nonjudicial punishment (NJP) was imposed against him on 18 July 1973 for the 15-day AWOL period and his punishment consisted of a forfeiture of pay, extra duty and restriction.

He completed his training and was transferred to Korea on 18 October 1973 for duty as a small arms repairman.

On 15 November 1973, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay and restriction. 

On 26 February 1974, NJP was again imposed against him for two specifications of failure to have a valid pass in his possession and two specifications of failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

On 22 May 1974 charges were preferred against the applicant for being AWOL from 9 March to 14 May 1974, breaking restriction, possession of an identification card belong to another soldier, falsifying the signature of another soldier to purchase controlled items at the post exchange, wrongful possession of marijuana, and seven specifications of purchasing controlled items such as stereo equipment, rice cookers, irons, toasters, skillets, and blenders, in excess of the prescribed limits.  The chain of command strongly recommended trial by General Court-Martial.

On 23 May 1974 the applicant underwent a mental status evaluation and was determined to be mentally responsible to determine right from wrong and to adhere to the right.

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 indicated in his request that he understood the implications attached to such a request, that he had not been coerced by anyone in regards to the request, that he understood he might be deprived of many or all benefits, and that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He also submitted a statement in his own behalf whereas he asserted that he could not accomplish anything by staying in the Army, that he was contributing to his family’s support because his father was supporting their family through Army disability payments, and that he got into black-marketing because he had met a girl in Korea and needed money to get married.  He requested that he be issued a general discharge.

The applicant’s company and battalion commanders recommended disapproval of his request and indicated that the applicant had shown nothing but contempt for both the Army and the “Pro-Life” concept of the Division and that he had been afforded ample opportunity to conduct himself in a manner befitting a member of the Army. 

The brigade commander recommended approval of the applicant’s request and the appropriate authority (a major general) approved the request on 4 June 1974, directing that an Undesirable Discharge Certificate be issued.

Accordingly, the applicant was discharged under other than honorable conditions on 30 June 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 6 months and 12 days of total active service and had 82 days of lost time due to AWOL.

On 12 September 1987 the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that his discharge should be upgraded because he was close to finishing his enlistment, that his discharge was too harsh for the offenses for which he was charged, that his personal, financial and family problems impaired his ability to serve, that the over-limit items he had purchased were not black market items but were for his own personal use, and that the marijuana was for his own personal use and would be considered a minor offense under today’s standards. He also contended that he was not properly counseled on the effects of his discharge by legal counsel and that the charges were misleading and had never been proven.

He was granted a personal appearance, with the assistance of counsel, before the ADRB travel panel in Dallas, Texas on 5 April 1988.  After hearing the testimony and reviewing the evidence submitted as well as the evidence of record, the ADRB determined that the applicant had been properly discharged and denied his request.

A review of the letters of support submitted by the applicant with his application shows that he is an active member of the church and that he is respected as a good person by those submitting the letters of support.  They contend that he should be forgiven for his youthful mistakes and granted an upgrade of his discharge. 

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 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.  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 Board commends the applicant for his post-service conduct and has noted the supporting statements submitted with his application.  However, they are not sufficiently mitigating when compared to his extensive absences, the seriousness of the charges against him 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

__slp  ___  __rks ___  ___jpi___  DENY APPLICATION

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

INDEX

CASE ID	AR2000049698	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/03/22	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/06/30	
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.