MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 February 2002
	DOCKET NUMBER:   AR2001061143

	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 N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John E. Denning		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 honorable.

APPLICANT STATES:  In effect, that he had problems with his platoon sergeant for a long time and he believes that his platoon sergeant and first sergeant set him up at the time.  He goes on to state that the incident that led to his discharge consisted of his platoon sergeant throwing him into a barracks hallway wall, at a time that the rest of the company had been sent to the motor pool.  At the time, he told the platoon sergeant that if he ever touched him again, he (the applicant) would kill him (the platoon sergeant).  The company first sergeant appeared at that moment and declared that he (the applicant) was going to jail.  He continues by stating that he was 18 years of age at the time and he made a terrible mistake; however, he did not deserve an undesirable discharge.  He also states that he did not apply sooner because he was just told that he could file such an appeal. 

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

He enlisted on 21 January 1970 for a period of 4 years.  He successfully completed his training and was assigned to Fort Bliss, Texas as a Vulcan crewman.  He was advanced to the pay grade of E-3 on 12 June 1970.

On 6 October 1970, he was convicted by a summary court-martial of being absent without leave (AWOL) from 6 July to 14 September 1970.  He was sentenced to a reduction to the pay grade of E-2, confinement at hard labor for 1 month (suspended) and a forfeiture of pay.

The applicant was transferred to Fort Hood, Texas on 29 October 1970 and went AWOL from 17 to 18 November 1970.  The record is silent as to any punishment imposed for that offense.

The applicant underwent a medical and physical examination on 9 June 1971 for the purpose of separation and was determined to be both mentally and physically fit for retention or separation.

The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214) which shows that he was discharged under other than honorable conditions on 16 June 1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  He had served 1 year, 2 months and 14 days of total active service and had 73 days of lost time due to AWOL. 

At the time of his discharge, the applicant received a letter explaining the procedures for applying to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within 15 years of discharge.  He acknowledged by his signature that he had read the letter and understood its contents.  There is no evidence to show that he ever applied to the ADRB 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.  The individual must also indicate that the request was done without any coercion from anyone and must explain that he understands the consequences of submitting such a request as well as the consequences of the type of discharge he might receive.  A request for discharge can only be accepted if it was voluntarily submitted by the individual concerned.  A discharge under other than honorable conditions was and still 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.  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, it must also be presumed that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been noted by the Board; however they are not sufficiently mitigating to warrant relief.  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 only after charges have been preferred.  Accordingly, it appears 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.

4.  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 his otherwise undistinguished record during such a short period of time.

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

___be___  ___js ___  ___jed___  DENY APPLICATION

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

INDEX

CASE ID	AR2001061143	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/02/14	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/06/16	
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.