MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            25 April 2002
	DOCKET NUMBER:   AR2001065840

	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. Joann Langston		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Charles Gainor		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 or medical discharge.

APPLICANT STATES:  That his discharge should be upgraded because of a head injury he received prior to entering the service.  He also states that he is willing to serve again if afforded the opportunity.

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

He enlisted in Albuquerque, New Mexico, on 28 June 1974, for a period of 3 years, training as an infantryman and assignment to Fort Hood, Texas.  He successfully completed his training at Fort Polk, Louisiana, and was transferred to Fort Hood on 3 November 1974.  He was advanced to the pay grade of E-3 on 6 March 1975.

On 18 April 1975, he went absent without leave (AWOL) and remained absent until he was apprehended by Federal Bureau of Investigation officials in Fort Wayne, Indiana, on 15 July 1975.  He was surrendered to the AWOL Apprehension Unit at Fort Benjamin Harrison, Indiana and was then transferred to the Personnel Control Facility at Fort Knox, Kentucky, where charges were preferred against him.

He again went AWOL on 28 July 1975 and remained absent until he surrendered to military authorities at Fort Hood on 22 August 1975, where charges were again preferred against him.

On 28 August 1975, 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 to submit a statement in his own behalf whereas he asserted, in effect, that he was experiencing family/marital problems and that he was on levy to Germany and had been told that he could not take his wife with him.  He felt obligated to protect his wife from his family. 

The appropriate authority (a lieutenant general) approved his request and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he received an undesirable discharge on 3 October 1975, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 11 months and 15 days of total active service and had 113 days of lost time due to AWOL.
He applied to the Army Discharge Review Board (ADRB) in 1976 and 1982, contending that he had turned down a medical discharge for the head injury he received prior to entering the service because he really wanted to stay in.  However, because of his personal problems and his low aptitude, he could not handle the pressure.  He contended that he should have been given an expeditious or general discharge.  The ADRB found no merit to his contentions and denied both of his applications.

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 and there never have been any provisions for an automatic 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.  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 contentions and supporting documents have been noted by the Board.  However, the Board notes that 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 seriousness of the offense, the extensive length of his absence and his rank at the time.

4.  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.

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

__gp____  __jhl____  ____cg __  DENY APPLICATION

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

INDEX

CASE ID	AR2001065840	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/04/25	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	1975/10/03	
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.