MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 April 2000
	DOCKET NUMBER:   AR1999031627

	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	
	Mr. Stanley Kelley		Member	
	Mr. Lester Echols		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 under other than honorable conditions be upgraded to honorable.

APPLICANT STATES:  In effect, that he was given the opportunity to stay in the service but instead chose to be discharged.  He goes on to state that his discharge was based on his going AWOL; but he had an otherwise excellent record of service that was not taken into account when he was discharged.  He further states that he has not been in any trouble in 20 years or had so much as a ticket and that he has been a good hard worker. 

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

He enlisted in Tallahassee, Florida on 9 January 1979 for a period of 3 years, training as a tank driver, and assignment to Fort Hood, Texas.  He completed his training at Fort Knox, Kentucky and was transferred to Fort Hood, Texas on 11 May 1979.  He was advanced to the pay grade of E-4 on 1 October 1980.

On 26 February 1980 nonjudicial punishment was imposed against him for failure to go to his place of duty.  His punishment consisted of extra duty for 14 days.

On 16 January 1981 nonjudicial punishment was imposed against him at Fort Bragg, North Carolina for being AWOL from Fort Hood from 14 November 1980 to 5 January 1981.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, and correctional custody for 30 days

On 30 January 1981 he again went AWOL and remained absent in a deserter status until he was apprehended by civil authorities in Tampa, Florida on 22 September 1982.  He was returned to military control at Fort Stewart, Georgia on 30 September 1982 and was transferred to Fort Bragg.

The facts and circumstances surrounding the applicant’s administrative 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 on 9 December 1982 he was discharged 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,1 month and 18 days of total active service and had approximately 681 days of lost time due to AWOL..

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-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 and there are no 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, 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 extensive absences and his otherwise undistinguished record of service during a relatively short period.

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

___sk ___  ____rvo _  ___le ___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031627	
SUFFIX		
RECON		
DATE BOARDED	2000/04/05	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1982/12/09	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689 	144.7000/A70.00/GD OF SVC	
2.		
3.		
4.		
5.		
6.