MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 March 2001
	DOCKET NUMBER:   AR2000049823

	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. John H. Kern		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Richard T. Dunbar		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 went absent without leave (AWOL) to go home and support his ailing mother and he never did any injustice to his country. He also states that all of his brothers were older and serving in the military at the time.  He further states that he expected a general discharge at the time and he has now become totally disabled due to a construction accident and now desires healthcare from the Veterans Administration.

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

He enlisted in New Haven, Connecticut on 23 January 1973 for a period of 2 years.  He successfully completed his training and was transferred to Fort Devens, Massachusetts on 22 July 1973 for duty as a legal clerk.

On 11 September 1973 nonjudicial punishment was imposed against him for being AWOL from 1 August to 4 September 1973.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.  The applicant did not appeal the punishment.

On 3 October 1973 the applicant’s commander notified him that he was initiating action to separate him from the service for unsuitability under the provisions of Army Regulation 635-200, chapter 13.  After consulting with counsel the applicant elected to waive consideration by and a personal appearance before a board of officers.  He also elected not to submit a statement in his own behalf.

He underwent a mental status evaluation on 10 October 1973 in which the examining psychiatrist indicated that the applicant lacked appropriate interest in the Army in general and specifically demonstrates a hostile attitude towards military authority.  He is recalcitrant to rehabilitation and prognosis for functioning as an effective soldier was deemed poor.  He recommended the applicant be processed for an administrative discharge.

However, before the recommendation for discharge could be finalized, the applicant went AWOL from 24 October to 6 November 1973 and from 12 November 1973 to 22 January 1974, when he was returned to military control and charges were preferred against him.

On 5 February 1974, 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.  As part of his request he acknowledged that he understood he could receive an undesirable discharge and that he understood the implications associated with his request and the type of discharge he could receive.  He also elected to submit a statement in his own behalf whereas he asserted that his brothers convinced him to join the Army and that he realized it was a mistake.  He also stated that he was guilty of the charges against him, that his mother had been ill and out of work, that he had obtained a job at a steel factory with his brother and all he wanted was to get out of the Army.  He reiterated that he was aware he would lose his benefits and that he could expect to encounter prejudice in civilian life with a discharge under other than honorable conditions.

The applicant’s commander counseled the applicant prior to making a recommendation and the applicant informed him that he wanted out of the Army regardless of the loss of benefits and the prejudice he would experience.  Accordingly the chain of command supported his request for discharge.

The appropriate authority approved his request for discharge on 1 March 1974 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 13 March 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 10 months and 23 days of total active service and had 118 days of lost time due to AWOL.

He applied to the Army Discharge Review Board (ADRB) in July 1974 for an upgrade of his discharge and the ADRB denied his request on 27 August 1974.

He applied to this Board on 22 November 1974 requesting an upgrade of his discharge and contended that he was unjustly given an undesirable discharge when should have been given an administrative discharge.  The Board denied his application without a review based on his failure to submit sufficient evidence of error or injustice to warrant a review.

He again applied to the ADRB for an upgrade of his discharge on 19 August 1977 contending that he had a mental condition that impaired his ability to serve and that his commander unjustly gave him an undesirable discharge despite the fact that he was good soldier.  The ADRB unanimously denied his request on 12 February 1979.

He again applied to the ADRB and was granted a formal appearance before that board scheduled to occur in Boston, Massachusetts in the May/June 1982 timeframe.  The notification was dispatched on 12 February 1982 and the applicant was given 30 days to acknowledge attendance or to reschedule his hearing.  He failed to respond and because he was only entitled to one records-only review (previous ADRB review), his case was closed without action.

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 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 appear to be appropriate considering all of the facts of the case.

3.  The applicant’s contentions have been noted by the board; however, given seriousness of the offenses for which he was charged and his otherwise undistinguished record of service over such a short period of service, there is no basis to upgrade his discharge.

4.  It appears that the applicant requested an administrative discharge in lieu of trial by court-martial in order to avoid the possible felony conviction that he could have received if convicted at trial by court-martial.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

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

___jhk___  ___rwa__  _clg ____  DENY APPLICATION

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

INDEX

CASE ID	AR2000049823	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/03/01	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/03/13	
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.