MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            20 January 2000
	DOCKET NUMBER:   AR1999029778

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Gary F. Geraets		Member	
	Ms. Barbara J. Ellis		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES:  That he was in a group of soldiers at a concert when drugs were found in his field jacket.  He goes on to state that he had not been using drugs and does not know how the drugs got into his jacket; therefore, since he had previously received an honorable discharge and because it was not proven that he had knowledge of the drugs, he should not be penalized for them being in his jacket.  He also states that he had no choice but to accept the undesirable discharge, that he had no opportunity to tell his side of the story, that his record is satisfactory except for the one incident, and that he would probably still be in the military had he not gone to the concert.  He further states that he has been suffering from Post Traumatic Stress Disorder (PTSD) and has not been able to collect his thoughts to file earlier than he did.

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

The applicant was inducted in Dodge City, Kansas on 24 July 1969.  He successfully completed his training and was transferred to Vietnam on 6 February 1970 for duty as a radio teletype operator.  He was promoted to the pay grade of E-4 on 6 July 1970.

On 8 July 1970 he reenlisted for a period of 3 years and departed Vietnam on 1 January 1971 for assignment to Fort Carson, Colorado. 

Although the record is silent as to punishment, his records show that he went AWOL from 12 July to 26 July 1971.

On 23 August 1977 nonjudicial punishment was imposed against the applicant for being AWOL from 16 August to 19 August 1971.  His punishment consisted of a reduction to the pay grade of E-3.

On 24 September 1971 nonjudicial punishment was imposed against him for being AWOL from 6 September to 20 September 1971.  His punishment consisted of a reduction to the pay grade of E-2 (suspended), a forfeiture of pay (suspended), and restriction (suspended). 

On 10 January 1972 he departed AWOL and remained absent until he was returned to military control on 22 January 1972.  The record is silent as to any punishment for this offense. 

His records also indicate that he was confined by civil authorities from 11 June to 22 June 1972 and the record is also silent as to any punishment imposed.

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records do show that he was charged with the wrongful possession of marijuana and that he 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.

The applicant’s request was approved and he was discharged on 23 August 1972 under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served 2 years, 11 months, and 4 days of total active service and had 59 days of lost time.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-years 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.  Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge.  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.  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, it appears that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  A request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned.  Therefore, it appears that 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.

4.  The applicant’s contentions have been noted by the Board and appear to be without merit when compared to the available facts and circumstances, the seriousness of his offense, and his otherwise undistinguished record of service.

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

__be____  ___rgh __  ___gg___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029778	
SUFFIX		
RECON		
DATE BOARDED	2000/01/20	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1972/08/23	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689/GOOD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689 	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.