MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 June 2002
	DOCKET NUMBER:   AR2002070805

	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. Celia L. Adolphi		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Donald P. Hupman		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 honorable.

APPLICANT STATES:  The applicant offers no evidence or argument of error or injustice in his application.

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

The applicant was born on 4 September 1947 and enlisted in Philadelphia, Pennsylvania with a waiver for a civil conviction for burglary and larceny on 14 August 1967, for a period of 3 years.

On 22 November 1967, while attending his advanced individual training, nonjudicial punishment (NJP) was imposed against him for stealing a pair of trousers from the post exchange.  His punishment consisted of a forfeiture of pay and restriction. 

He completed his training and was transferred to Vietnam on 16 January 1968, for duty as a cargo handler.  He was advanced to the pay grade of E-3 on 25 January 1968.  He completed his tour in Vietnam on 11 January 1969 and was transferred to Fort Carson, Colorado.

On 3 April 1969, NJP was imposed against him for being absent without leave (AWOL) from 6 March to 12 March and 12 March to 14 March 1969.  His punishment consisted of a forfeiture of pay, extra duty and a reprimand.

His records show that he began a series of going AWOL and received NJP on two more occasions and was convicted by special court-martials in April and May 1969 for AWOL offenses.

On 17 May 1969, he again went AWOL and remained absent until he was apprehended by civil authorities and was returned to military control at Fort Meade, Maryland on 29 August 1969.

The actual facts and circumstances surrounding the applicant’s administrative separation 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 14 October 1969, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 9 months, and 6 days of total active service and had 145 days of lost time due to AWOL and confinement.

There is no evidence in the available records to show that the applicant 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.  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.

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 and having a felony conviction on his records.  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

__dh____  ___cla___  __be____  DENY APPLICATION

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

INDEX

CASE ID	AR2002070805	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/06/13	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1969/10/14	
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.