MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            16 May 2002
	DOCKET NUMBER:   AR2002068933

	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. Fred N. Eichorn		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Paula Mokulis		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 more favorable discharge.

APPLICANT STATES:  In effect, that his discharge should be upgraded because it has been 27 years since he was discharged.

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

He enlisted in Los Angeles, California on 3 December 1973, for a period of 3 years and training as a clerk typist.  He was transferred to Fort Ord, California to undergo his training.  

On 20 February 1974, while undergoing advanced individual training (AIT), nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty (guard duty).  His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 13 March 1974, NJP was imposed against him for striking another soldier in the face.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

Although the reason is not apparent in the available records, NJP was again imposed against him for misconduct and his punishment consisted of a forfeiture of pay, reduction to the pay grade of E-1 and extra duty.

On 17 April 1974, NJP was imposed against him for the possession of narcotic paraphernalia, possession of another soldier’s wallet, driver’s license, social security card and military identification card.  His punishment consisted of a forfeiture of pay.

The applicant completed his AIT and was transferred to Fort Lewis, Washington on 5 June 1974.

An investigation was initiated by the Criminal Investigation Division (CID) on 27 September 1974 in which the applicant was investigated for the theft of personal property.  

The applicant was charged with 2 days of being absent without leave from 24 December to 26 December 1974; however, there is no evidence of the disposition of those charges.

He was arrested and confined by civil authorities from 27 to 30 September 1974 and again from 15 to 17 April 1975.  Although the facts and circumstances are not available in the records, there is information in the records, which indicate that he was convicted for grand larceny (auto theft) in Pierce County, Washington.  This occurred while he was pending trial by a special court-martial authorized to adjudge a bad conduct discharge for several charges, which included larceny of billets and stealing parts from an automobile.  

The facts and circumstances surrounding his discharge are not present in the available records.  However, his records do contain a duly constituted report of separation signed by the applicant, which shows that he was discharged under other than honorable conditions on 9 May 1975, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 4 months, and 29 days of total active service and had 8 days of lost time due to AWOL and civil confinement.

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.  Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge.  A discharge under other than honorable conditions is normally considered appropriate.  There are no provisions, nor have there ever been, to automatically upgrade a discharge made under these provisions.

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 be presumed that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  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.  Therefore, it appears that he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge or the associated punishments.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.
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

___fe ___  ___pm __  __ra ____  DENY APPLICATION

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

INDEX

CASE ID	AR2002068933	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/05/16	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/05/09	
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.