MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 January 2002
	DOCKET NUMBER:   AR2001062419

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Donald P. Hupman, Jr.		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 (UD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that prior to enlisting in the Army he applied to technical college and had not heard back from them; in addition, he was newly wed.  He claims that subsequent to entering the Army he was notified of his acceptance to the technical college and was considered absent without leave (AWOL) when he elected to attend school.  He further states that he now understands that his decision to go AWOL to attend the technical college and not returning to military control was the wrong choice.  In support of his application, he submits a certificate of training from the United Tribes Employment Training Center and his separation document (DD Form 214).

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

On 30 September 1974, he entered the Army for a period of 3 years.  He completed basic combat training and was assigned to Fort Leonard Wood, Missouri, to attend advanced individual training (AIT).  His record shows that the highest rank he attained while serving on active duty was private/E-2 and it documents no acts of valor, significant achievement, or service warranting special recognition.  

On 5 January 1975, while assigned to Fort Leonard Wood the applicant went AWOL.  He remained away for 65 days until returning to military control on 10 March 1975.  On 20 March 1975, a court-martial charge was preferred against the applicant for being AWOL from 5 January 1975 to 10 March 1975.

On 25 March 1975, the applicant consulted legal counsel and after being advised of the basis for the contemplated trial by court-martial, the maximum allowable punishment, and the possible effects of an UD, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, 
Army Regulation 635-200.  

On 4 April 1975, the appropriate authority approved the applicant’s discharge request and directed he be issued an UD and that he be reduced to the lowest enlisted grade.  On 16 April 1975, the applicant was discharged accordingly after completing a total of 4 months and 11 days of creditable active military service and accruing 65 days of time lost to due AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statue 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 UD.

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 Board notes the applicant’s request that his discharge be upgraded given he now knows he made the wrong choice by going AWOL to attend school.  However, it finds this factor alone is not sufficiently mitigating to warrant the requested relief. 

2.  The evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and after consulting with legal counsel, he voluntarily requested separation in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense under the UCMJ.  

3.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process and that his discharge accurately reflects his overall record of service. 

4.  Finally, the Board notes that the applicant chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, this is not a sufficient basis for granting the requested relief.  

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

__INW___  __HOF__  __DPH__  DENY APPLICATION

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

INDEX

CASE ID	AR2001062419	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/01/15	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19750416	
DISCHARGE AUTHORITY	AR635-200, CH 10 .  .  .  .  .  	
DISCHARGE REASON	In lieu of Trial by CM	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 93.07.	71.00	
2.		
3.		
4.		
5.		
6.