MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            2 March 2000                  
	DOCKET NUMBER:    AR1999030628

	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. Edwin S. Castle		Chairperson	
	Mr. Stanley Kelley		Member	
	Ms. Kathleen A. Newman 		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 a general discharge.

APPLICANT STATES:  That he went AWOL because of his mother’s severe health situation at the time in which she was in intensive care and was not expected to live.  He goes on to state that he asked his commander for emergency leave and was denied with no explanation.  He continues by stating that he returned after his mother recovered from emergency surgery and served his punishment in full.  He also states that when he was told that he could leave the service for the betterment of the service, he was under the impression that it was of benefit to everyone.  He also contends that he was 17 years of age at the time and didn’t feel he was wrong to go to his mother; however, he never had the ramifications of accepting such a discharge explained to him.

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

The applicant enlisted with parental consent in Oklahoma City, Oklahoma on 24 August 1972 for a period of 4 years, training as a motor transport operator, and assignment to the 2d Armored Division at Fort Hood, Texas.

He was transferred to Fort Leonard Wood, Missouri to undergo his basic training and nonjudicial punishment was imposed against him on 21 September 1972 for breaking restriction.  His punishment consisted of a forfeiture of pay, extra duty and restriction. Upon completion of his basic training he was transferred to Fort Hood on 31 October 1972 to undergo his advanced individual training (AIT).

The applicant went AWOL on 9 November 1972 and remained absent until he was returned to military control on 25 November 1972.  The record is silent as to any punishment imposed.

The applicant again went AWOL on 8 February 1973 and remained absent until 5 May 1973, when he was returned to military control at Fort Sill, Oklahoma and charges were preferred against him.

The actual facts and circumstances surrounding the applicant’s administrative separation are not present in the available records.  However, his records do show that he submitted a request for discharge for the good of the service in lieu of trial by court-martial on 7 May 1973 under the provisions of Army Regulation 635-200, chapter 10.  His records also contain a duly constituted report of separation signed by the applicant which shows that he was discharged under other than honorable conditions on 30 May 1973 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He was separated on temporary records, was still in a trainee status, and had served 9 months, and 6 days of total active service and had 44 days of lost time due to AWOL.
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 after having consulted with counsel.  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 the seriousness of his offenses and his otherwise undistinguished record of service during a relatively short period.

5.  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 the aforementioned requirement.

6.  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

__esc___  __kan____  ___sk___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030628	
SUFFIX		
RECON		
DATE BOARDED	2000/03/02	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	1973/05/30	
DISCHARGE AUTHORITY	AR635-200, CH10 .  .  .  .  .  	
DISCHARGE REASON	689	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.144.7000	689/A70.00	
2.		
3.		
4.		
5.		
6.