MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 July 2003
	DOCKET NUMBER:   AR2003085517

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Patrick H. McGann		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.

APPLICANT STATES:  That he knows that he did wrong; however, he went to Vietnam to serve his country and did not shirk his responsibility in that respect.

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

He enlisted in Harrisburg, Pennsylvania, on 31 July 1967 for a period of 3 years and training as a military policeman.  He successfully completed his training and was transferred to Vietnam on 18 December 1967.  He was advanced to the pay grade of E-4 on 19 November 1968.  

He departed Vietnam on 10 December 1968 for assignment to Fort Benning, Georgia, with a report date of 26 January 1969.  He failed to report as ordered and was reported as being absent without leave (AWOL).

He remained absent until he was returned to military control at Fort Meade, Maryland, on 10 October 1969, where charges were preferred against him for the AWOL offense. 

He was convicted by a special court-martial on 24 November 1969, of being AWOL from 26 January to 10 October 1969.  He was sentenced to a reduction to the pay grade of E-1, confinement at hard labor for 2 months and a forfeiture of pay.

He was released from confinement on 7 January 1970 and was assigned to Fort Meade.  He again went AWOL on 4 May 1970 and remained absent until he was again returned to military control at Fort Meade on 16 September 1970, where charges were preferred against him. 

On 23 September 1970, 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.  He further elected not to submit a statement in his own behalf.

The appropriate authority approved his request and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 16 October 1970, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 1 month and 19 days of total active service and had 392 days of lost time due to AWOL and confinement.

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.

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 the length of his absences.

4.  The applicant’s contentions and supporting documents have been considered by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to his overall record of service.  While the applicant did serve in Vietnam, his disciplinary record as well as the lack of mitigating circumstances to explain his misconduct clearly warranted the discharge he received.

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

___kan __  __rvo ___  __pm ___  DENY APPLICATION

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

INDEX

CASE ID	AR2003085517	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/07/03	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/10/16	
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.