MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 March 2000
	DOCKET NUMBER:   AR1999030325

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Van B. Cunningham		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 at least a general discharge.

APPLICANT STATES:  That he was not granted his rights to due process.

COUNSEL CONTENDS:  In effect, that because his records are incomplete and it cannot be determined if the charges against him could have resulted in a punitive discharge if convicted at trial by court-martial, the applicant should be given the benefit of the doubt.

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

The applicant enlisted in Nashville, Tennessee on 19 September 1972 for a period of 3 years, training as a personnel records specialist, and assignment to Fort Campbell, Kentucky. 

He successfully completed his training at Fort Jackson, South Carolina and was transferred to Fort Campbell on 6 March 1973.

On 24 August 1973 nonjudicial punishment was imposed against the applicant for being AWOL from 17 August to 21 August 1973.  His punishment consisted of a forfeiture of pay.

Nonjudicial punishment was also imposed against him on 23 October 1973 for being absent from his place of duty.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.

On 30 January 1974 nonjudicial punishment was imposed against him for being AWOL from 14 January to 15 January 1974 and for failure to go to his place of duty on 21 January 1974.  His punishment consisted of a forfeiture of pay, extra duty, and confinement for 7 days (suspended for 2 monthsa).

He was convicted by a summary court-martial on 7 June 1974 of two specifications of failure to go to his place of duty.  He was sentenced to hard labor without confinement for 30 days, reduction to the pay grade of E-1, and a forfeiture of pay. 

Although the charge sheet is not in the available records, his records do indicate that charges were preferred against the applicant on 24 July 1974 with a recommendation for trial by a special court-martial.

After consulting with counsel the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that because he had been charged with an offense that authorized the imposition of a punitive discharge, he could submit such a request of his own free will without coercion from anyone and that he had been advised of the implications associated with such a request and the effects that an undesirable discharge may have on him in civilian life.  He also admitted that he was guilty of the offenses for which he was charged or of a lesser included offense that could result in a punitive discharge if convicted.

The appropriate authority (a major general) approved his request on 25 September 1974 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 2 October 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 11 months, and 29 days of total active service and had at least 15 days of lost time.

There is no evidence in the available records to show that the applicant 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.  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 must be presumed 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; however, they are not supported by the evidence submitted with his application or the evidence of record.  Accordingly, they are not sufficiently mitigating when compared to his disciplinary record, his otherwise undistinguished record of service during a relatively short period and the fact that after consulting with counsel he elected to request discharge rather than to assert his innocence before a trial by 
court-martial.

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

__rvo___  __mkp __  ___vbc __  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030325	
SUFFIX		
RECON		
DATE BOARDED	2000/03/15	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/10/02	
DISCHARGE AUTHORITY	AR 635-200/CH10	
DISCHARGE REASON	689/A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689 	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.