MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 August 2002
	DOCKET NUMBER:   AR2002072256

	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. Ted S. Kanamine		Member	
	Ms. Lana E. McGlynn		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:  In effect, that his undesirable discharge be upgraded to a more favorable discharge that will afford him the opportunity to utilize his benefits.

APPLICANT STATES:  In effect, that an error was made when he was issued an undesirable discharge because he served with a top secret unit that is also not indicated on his DD Form 214.

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

He enlisted in Los Angeles, California, on 19 December 1973, for a period of 3 years, training as a wheel vehicle mechanic and assignment to the United States Army Combat Development Experimentation Command (USACDEC) at Fort Ord, California.  He was assigned to Fort Ord to undergo his training.

On 5 April 1974, while attending his advanced individual training (AIT), nonjudicial punishment (NJP) was imposed against him for being absent from his place of duty.  His punishment consisted of restriction and extra duty.

He completed his training and was assigned to the USACDEC at Fort Ord on 28 May 1974.  He did not have a security clearance; however, he had a completed Entrance National Agency Check (ENTNAC).

On 30 September 1974, NJP was imposed against him for being absent without leave (AWOL) from 25 September through 29 September 1974.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay and extra duty.

He again went AWOL from 17 October through 13 November 1974 and from 15 November through 18 November 1974. 

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form214) signed by the applicant which shows that he was discharged under other than honorable conditions on 30 January 1975, under the provisions of Army Regulation        635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year and 5 days of total active service and had 37 days of lost time due to AWOL.

There is no indication in the available records which shows 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 voluntary 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 was at that time and is still 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, 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 the number and length of his absences during a short period of time.

4.  The applicant’s contentions have been considered by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service.  

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

___tsk___  __lem___  ___fe ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002072256	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/13	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/01/30	
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.