MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            30 July 2002
	DOCKET NUMBER:   AR2002072158

	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. Arthur A. Omartian		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Thomas Lanyi		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.

APPLICANT STATES:  That he was admitted to the infirmary the night before graduation from basic training for treatment of head and neck injuries.

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

He enlisted in San Antonio, Texas, on 14 November 1979, for a period of 3 years, training as a field artillery target acquisition specialist and assignment to the 2nd Armored Division.  He was assigned to Fort Sill to undergo his training.

The applicant was treated at the installation hospital at 0225 hours on 7 February 1980 for lacerations over the right eye and chin.  He received 12 stitches.  A subsequent line of duty investigation revealed that the applicant had entered the barracks while intoxicated and attempted to strike the fire guard.  The fire guard defended himself and caused the injury.  The investigation concluded that the injury was in the line of duty.

He went absent without leave (AWOL) on 7 February 1980 and remained absent until he was apprehended by civil authorities in Crosby, Texas, on 4 May 1983.  He was returned to military control and charges were preferred against him. 

On 15 June 1983, 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 also elected not to submit a statement in his own behalf.

The appropriate authority (a major general) approved his request on 30 June 1983 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 13 July 1983, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 4 months, and 24 days of total active service and had 1,182 days of lost time due to AWOL.

There is no indication in the available records to show that the applicant ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

On 20 June 2000, while incarcerated, the applicant signed an authorization for release of a copy of his report of separation (DD Form 214) to officials at the Texas Department of Corrections in connection with his application in Project Rio, a rehabilitation program for inmates.

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 the length of his absence as well as 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 considering the seriousness of his offense.

5.  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.

6.  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

__kah___  ___ao___  ___tl____  DENY APPLICATION

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

INDEX

CASE ID	AR2002072158	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/07/30	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1983/07/13	
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.