MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 August 2002
	DOCKET NUMBER:   AR2002072607

	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:  That his discharge under other than honorable conditions be upgraded to a more favorable discharge.

APPLICANT STATES:  That at the time, he was young, dumb and stupid, because he fell in love with a German girl or thought he had and went absent without leave (AWOL).

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

He was born on 31 January 1953 and initially served in the Marine Corps from April 1972 until he was honorably discharged in April 1974.  He served in the Marine Corps Reserve until he was honorably discharged on 12 April 1977.

He enlisted in the Regular Army on 13 April 1977, for a period of 4 years, training as a materiel supplyman and assignment to Europe.  He successfully completed his training and was transferred to Germany on 17 August 1977.

On 7 September 1977, nonjudicial punishment (NJP) was imposed against him for assaulting a noncommissioned officer.  His punishment consisted of a forfeiture of pay, extra duty and correctional custody for 7 days (suspended for 30 days).  The applicant did not appeal the punishment.

On 1 December 1977, nonjudicial punishment was imposed against him for two specifications of failing to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay and correctional custody for 30 days.  He appealed his punishment and his appeal was denied on 20 December 1977.

On 22 December 1977, while en route to correctional custody, the applicant escaped from the custody of a noncommissioned officer.  He went AWOL from 22 December 1977 and remained absent until he was returned to military control on 4 January 1978 and charges were preferred against him on 2 February 1978.

On 6 February 1978, 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 acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge and elected not to submit a statement in his own behalf.

On 2 March 1978, his counsel submitted a request in the applicant’s behalf, requesting that his request for discharge be withdrawn.  The commanding general disapproved his request on 20 March 1978 and directed that he be discharged under other than honorable conditions. 

Accordingly, he was discharged under other than honorable conditions on 28 March 1978, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 11 months and 16 days of active service during his current enlistment and had 13 days of lost time due to AWOL.

There is no indication 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 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.  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 undistinguished record of service during such a short period of time.

4.  The applicant’s contentions have been noted by the Board; however, they are not sufficiently mitigating to warrant an upgrade of his discharge when compared to his overall record of service during the time in question.

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

___lem __  ___tsk __  __fe ____  DENY APPLICATION

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

INDEX

CASE ID	AR2002072607	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/13	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1978/03/28	
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.