MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 July 2002
	DOCKET NUMBER:   AR2002071923

	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. Ted S. Kanamine		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Harry B. Oberg		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:  In effect, that while not an excuse, he was young and naïve at the time and after almost 30 years, would like to have his discharge upgraded.

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

He was born on 24 September 1955 and enlisted in New Orleans, Louisiana, on 30 October 1973, for a period of 3 years and assignment to the 101st Airborne Division at Fort Campbell, Kentucky.  He successfully completed his training at Fort Polk, Louisiana, and was transferred to Fort Campbell on 16 April 1974, for duty as an infantryman. 

On 30 April 1974, he went absent without leave (AWOL) and remained absent until 2 May 1974.  He again went AWOL from 9 May to 15 May 1974 and from 22 May to 28 June 1974, when he was returned to military control at Fort Hood, Texas, where charges were preferred against him for the AWOL offenses. 

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 (DD Form 214) signed by the applicant, which show that he was discharged under other than honorable conditions on 31 July 1974, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by              court-martial.  He had served 7 months and 17 days of total active service and had 45 days of lost time due to AWOL.  His records also show that he acknowledged that he had been briefed on the procedures for applying for an upgrade of his discharge to the Army Discharge Review Board.

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 and there are not now nor have there ever 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.  In the absence of evidence to the contrary, the Board must presume 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, 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.  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.  The Board has noted the applicant’s contentions; however, they are not sufficiently mitigating to warrant relief.  Many soldiers who are younger than the applicant are young and naïve when they enter the service and still they endure the hardships necessary to serve their country honorably.  The applicant’s discharge properly reflects the character of his service at the time and he has failed to provide sufficient justification to warrant an upgrade.

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

___jm___  ___tsk __  __hbo___  DENY APPLICATION

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

INDEX

CASE ID	AR2002071923	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/07/11	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/07/31	
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.