MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:     

		BOARD DATE:           30 September 2003
		DOCKET NUMBER:  AR2003088182

	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 J. Wagner		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Margaret V. Thompson		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 be upgraded.

APPLICANT STATES:  That he received a general discharge and wants it upgraded to honorable.  He goes on to state that he needs his discharge upgraded because he needs medical assistance.

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

He enlisted in Jackson, Mississippi, on 19 October 1972 for a period of 3 years and training as an engineer heavy equipment operation and maintenance specialist.

He completed his basic combat training at Fort Jackson, South Carolina, and his advanced individual training (AIT) at Fort Leonard Wood, Missouri.  Upon completion of his AIT he was transferred to Fort Hood, Texas.

The applicant went absent without leave (AWOL) on 17 June 1973 and remained absent until he was returned to military control on 30 July 1973.  Nonjudicial Punishment (NJP) was imposed against him on 20 August 1973, for the AWOL offense.  His punishment consisted of a forfeiture of pay, extra duty and restriction (suspended for 60 days).  

The applicant again went AWOL on 6 October 1973 and remained absent until he was apprehended by civil authorities in Laurel, Mississippi, and was returned to military control on 6 February 1974.  He was initially transferred to Fort Rucker, Alabama, and then to Fort Gordon, Georgia, where charges were preferred against him for the AWOL offense.

On 12 February 1974, 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 or dishonorable discharge.  He 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.  

The complete facts and circumstance surrounding his request for discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214), which shows that he was discharged under other than honorable conditions on 13 March 1974, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  He had served 10 months and 28 days of total active service and had 177 days of lost time due to AWOL.

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 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 and there have never 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, 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.  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.  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.

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

__mm___  ___mvt__  __rjw____  DENY APPLICATION

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

INDEX

CASE ID	AR2003088182	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/09/30	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/03/13	
DISCHARGE AUTHORITY	AR 635-200/CH10	
DISCHARGE REASON	GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.