MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 April 2001
	DOCKET NUMBER:   AR2000050066

	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	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Celia L. Adolphi		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:  That he was told that his discharge would automatically be upgraded to an honorable discharge after 10 years.  He states that he is a Vietnam era veteran and there was amnesty for draft dodgers.  He further states that it has been over 20 years since his discharge and his service is still characterized as undesirable.

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

On 28 June 1972, he enlisted in the Army for 4 years in the pay grade of E-1.  He successfully completed his training as an armor crewman and was transferred to Germany on 1 December 1972.

Nonjudicial punishment was imposed against the applicant on 14 February 1973 for being absent without leave (AWOL) from 2 January until 20 January 1973.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 2 October 1973, charges were preferred against the applicant for disobeying a lawful order and two specifications of failure to go to his appointed place of duty.

The applicant was notified of the charges pending against him on 28 September 1973.  He acknowledged receipt of the notification and, after consulting with counsel, he waived his rights and submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.

The appropriate authority approved the request for discharge on 25 October 1973.  Accordingly, on 8 November 1973, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  He had completed 1 year, 3 months and 23 days of total active service and he had 18 days of lost time due to AWOL.  He was furnished an Undesirable Discharge Certificate.

There is no evidence of record that shows that the applicant 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 that 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 the 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.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable 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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.  The Board has noted the applicant’s contentions.  However, there is no evidence of record that substantiates his contention that he was told that his discharge would be automatically upgraded.  He chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

4.  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.

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

__hbo___  ___jh ___  ___cla___  DENY APPLICATION

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

INDEX

CASE ID	AR2000050066	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/04/05	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1973/11/08	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	635-200	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000	
2.  708	144.7100	
3.  713	144.7110	
4.  718	144.7500	
5.		
6.