MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 April 2001
	DOCKET NUMBER:   AR2001052792

	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:  In effect, that his undesirable discharge be upgraded to a more favorable discharge.

APPLICANT STATES:  In effect, that although nonjudicial punishment (NJP) was imposed against him on seven occasions and he had three periods of being absent without leave, he served his country in Vietnam and Germany. 

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

He volunteered for induction in Indianapolis, Indiana on 19 June 1968 and successfully completed his training.  He was transferred to Germany on 8 November 1968 for duty as an armor intelligence specialist.  He reenlisted on 13 June 1969 for assignment to Vietnam and remained in Germany until 24 July 1969.  He reported to Vietnam on 28 September 1969.  He was advanced to the pay grade of E-4 on 10 December 1969.

A review of the applicant’s records shows that NJP was imposed against him on seven occasions for leaving his weapon unguarded, disobeying direct/lawful orders, AWOL (two separate offenses), and insubordination.  His records also show that he went AWOL on three separate occasions from 6 to 18 April 1971, from 6 July to 28 November 1971 and from 2 December 1971 to 4 January 1972. 

All of the facts and circumstances surrounding his administrative discharge are not present in the available records.  However, the available records show that he submitted a request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  The appropriate authority (a major general) approved his request on 15 January 1972 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 31 January 1972 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 1 month, and 6 days of active service during his current enlistment (total of 3 years and 1 month) and had 196 days of lost time.  His awards included the Combat Infantryman Badge, the Army Commendation Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal and the National Defense Service Medal.

There is no indication that the applicant has 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, 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 automatic provisions for an 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.  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.

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 applicant’s contentions have been noted by the Board; however, they are not sufficiently mitigating when compared to the seriousness of his offense and his overall disciplinary record.  

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

___mm__  __mvt ___  ___jhk __  DENY APPLICATION

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

INDEX

CASE ID	AR2001052792	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/04/17	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	1972/01/31	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	689/GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.