MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            9 August 2001
	DOCKET NUMBER:   AR2001056582

	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. Irene N. Wheelwright		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Ms. Gail J. Wire		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 he signed a contract at the time of enlistment to go to Fort Ord, California for basic training, to Hawaii for on the job training and from there he was to be sent to Germany.  However, he was sent to Texas instead of Hawaii and he decided to leave the service at that point.

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

He enlisted in the Regular Army in Memphis, Tennessee on 27 November 1972 for a period of 4 years, a cash enlistment bonus, basic training at Fort Ord and assignment to the 2d Armored Division.  At the time of enlistment he indicated by his signature that no promises other than those made in writing had been made to him.

He completed his basic training at Fort Ord and was transferred to the 2d Armored Division at Fort Hood, Texas on 17 February 1973 to undergo on the job training.

On 12 March 1973 he went absent without leave (AWOL) and remained absent until he was returned to military control on 6 April 1973.

He again went AWOL on 12 April 1973 and remained absent until he was apprehended by Naval Shore Patrol officials (AWOL Apprehension Team) on 7 February 1974.  He was found hiding in a closet at the time of his arrest.

He again went AWOL on 12 February 1974 and remained absent until he was arrested by civil authorities for burglary and larceny on 18 March 1974.  He was discovered in jail by Shore Patrol officials and was subsequently transferred to Fort Campbell, Kentucky where charges were preferred against him for the three AWOL offenses.

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.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He further elected not to submit a statement in his own behalf.

On 9 May 1974 the appropriate authority (a brigadier general) approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged under other than honorable conditions on 21 May 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 5 months and 1 day of total active service and had 389 days of lost time due to AWOL. 

There is no evidence in the available records to show 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 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 condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  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 were appropriate under the circumstances.

3.  The applicant’s contention that he had an enlistment contract which guaranteed him training in Hawaii and a subsequent assignment to Germany, appears to be without merit and is not supported by the evidence of record.  His contract guaranteed him basic training at Fort Ord and assignment to the 2d Armored Division.  The applicant was transferred to Fort Hood and assigned to the 2d Armored Division in accordance with the terms of his contract.  Accordingly, the terms of his contract were met by the Army.  However, the applicant did not fulfill his obligations.

4.  After being afforded the opportunity to assert his innocence before a trial by court-martial, 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.  In doing so he admitted guilt to the charges against him.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the extensive period of his absences.

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

__gw____  ___inw__  ___fe ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001056582	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/08/09	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	1974/05/21	
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.