MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 April 2001
	DOCKET NUMBER:   AR2000050149

	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. Melvin H. Meyer		Member	
	Ms. Margaret V. Thompson		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 discharge under other than honorable conditions be upgraded to a general discharge and that his reentry (RE) code and separation code be changed to codes that will allow him to enlist in the United States Army Reserve (USAR) or National Guard.

APPLICANT STATES:  In effect, that he was experiencing personal problems at the time as well as medical problems and he went absent without leave (AWOL) with the hopes of clearing up his personal problems and at the same time trying to recuperate from the terrible surgery that the military had botched up and left him to deal with.  He goes on to state that he later realized that he had done the wrong thing and surrendered to military authorities.  He also states that he realizes his immature mistake and now that he has matured, he would like his discharge upgraded to the point that he will be allowed to join the USAR or National Guard.

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

He was granted a medical waiver and enlisted in Jacksonville, Florida on 28 October 1992 for a period of 6 years and training as an attack helicopter repairman.  He was single and 20 years of age at the time of his enlistment.  He successfully completed his training and was transferred to Fort Bragg, North Carolina on 9 April 1993.  He was married on 12 April 1993 and was advanced to the pay grade of E-3 on 27 October 1993.

On 12 August 1994 he went AWOL and remained absent until he surrendered to military authorities at Fort Knox, Kentucky on 12 September 1995 and charges were preferred against him.

The facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his records do contain an statement from the individual whereas he admitted that he was guilty of the AWOL offense for which he had been charged.  His records also contain a duly constituted report of separation (DD Form 214) which shows that he was discharged under other than honorable conditions on 7 December 1995 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years and 10 days of total active service and had 396 days of lost time due to AWOL.  He was issued a RE Code of “3” and a separation code of “KFS”.

The applicant’s medical records were not present in the available records; however, he did sign a declination statement whereas he declined to take a separation medical examination at the time of separation.

There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board (ADRB) 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.  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.

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.  Although the Board does not normally consider cases until all administrative remedies have been exhausted by the applicant, the ADRB does not have the authority to change a RE Code.  Therefore, since he included this issue with his request, the Board has decided to consider his entire request.  However, the consideration of his case by the Board does not preclude him from applying for an upgrade of his discharge to the ADRB within that board’s statute of limitations.

2.  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.

3.  Accordingly, it appears that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

4.  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.

5.  The applicant’s contentions have been noted by the Board; however, they are not supported by the evidence submitted with his application or the evidence of record.  Accordingly, they are not sufficiently mitigating when compared to the seriousness of his offenses and his otherwise undistinguished record of service during a relatively short period.

6.  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.

7.  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

__mvt___  ___mm __  ___jhk __  DENY APPLICATION

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

INDEX

CASE ID	AR2000050149	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/04/17	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1995/12/07	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/GD OF SVC	
2.		
3.		
4.		
5.		
6.