MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            4 June 2002
	DOCKET NUMBER:   AR2002068911

	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. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Regan K. Smith		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 would like to have his undesirable discharge upgraded to general because he has an irreversible lung disease and desires to receive any veteran benefits that he can get.  He also states that at the time, the Vietnam War was going on and he was young and scared.  He also states that he missed the previous opportunities to apply for a pardon.

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

He was born on 5 March 1949 and was inducted in Newark, New Jersey on 12 March 1969.  He was transferred to Fort Dix, New Jersey to undergo his basic training.

On 18 April 1969, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.  His punishment consisted of 7 days of restriction to the company area.

On 6 May 1969, NJP was imposed against him for being absent without leave (AWOL) from 30 April to 3 May 1969.  His punishment consisted of a forfeiture of pay.

The applicant went AWOL on 10 May and remained absent until he was returned to military control on 4 November 1969 and charges were preferred against him.  He was convicted by a special court-martial on 24 November 1969 of the AWOL charges and was sentenced to confinement at hard labor for 2 months and a forfeiture of pay.

He again went AWOL on 30 December 1969 and remained absent until he was returned to military control on 12 April 1970 and charges were preferred against him for the AWOL offense.

On 29 April 1970, 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 indicated that he was aware that he might be ineligible for many or all benefits administered by the Veterans Administration.  He further elected not to submit a statement in his own behalf.

The appropriate authority (a brigadier general) approved his request for discharge on 8 May 1970 and directed that he be furnished an Undesirable Discharge Certificate.
Accordingly, he was discharged under other than honorable conditions on 19 May 1970, under the provision of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 months and 15 days of total active service and had 358 days of lost time due to AWOL and confinement.

There is no evidence in the available records to show that he 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 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.  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.  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 number and length of his absences as well as his otherwise undistinguished record of service during such a short period of 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

__ao____  __rks ___  __jlp   ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002068911	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/06/04	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/05/19	
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.