MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            2 July 2002
	DOCKET NUMBER:   AR2002070787

	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. Karol A. Kennedy		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Raymond J. Wagner		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 discharge under other than honorable conditions be upgraded to a more favorable discharge.

APPLICANT STATES:  In effect, that he was unaware that he could request an upgrade of his discharge and believes that he has paid for the mistake he made long enough. 

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

He enlisted in the United States Army Reserve (USAR) on 16 July 1975 for a period of 6 years.  He was ordered to active duty for training on 18 September 1975, and was transferred to Fort Leonard Wood, Missouri, to undergo his training.  He completed his training on 6 March 1976 and was honorably released from active duty.  He was returned to his USAR Unit in Milwaukee, Wisconsin, for duty as a wheel vehicle mechanic.

In April 1976, the applicant began a series of unexcused absences from his unit’s scheduled drills and notices were sent to the applicant’s home address by Certified Mail, informing him of the consequences of unsatisfactory participation.

The applicant continued to miss his scheduled drills and on 18 November 1976, his commander notified him that he was initiating action to order him to active duty for unsatisfactory participation.  The recommendation was approved and orders were published on 22 April 1977, ordering him to active duty at Fort Knox, Kentucky, on 7 June 1977, for a follow-on assignment to Fort Hood, Texas.

The applicant failed to report as ordered and was reported as absent without leave (AWOL) on 7 June 1977.  He remained absent until he surrendered to military authorities in Milwaukee on 21 July 1977 and was transferred to Fort Carson, Colorado, where charges were preferred against him.

On 1 August 1977, 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 contended that he had received his activation orders but just did not feel that his nerves would allow him to continue to serve in the Army and that it would be in the best interest of all concerned that he be released from the service.  He also acknowledged that he had been counseled on the procedures for requesting an upgrade of his discharge from the Army Discharge Review Board and this Board and that he had been provided the information for doing so in writing.

The appropriate authority (a major general) approved his request for discharge on 19 August 1977 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 7 September 1977, under the provision of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 7 months and 9 days of total active service and had 43 days of lost time due to AWOL.

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 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.

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 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 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

__kak___  ___ao___  __rjw____  DENY APPLICATION

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

INDEX

CASE ID	AR2002070787	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/07/02	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1977/09/07	
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.