MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 April 2000
	DOCKET NUMBER:   AR1999031928

	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 undesirable discharge be upgraded to honorable.

APPLICANT STATES:  That he was a kid at the time and did not realize what he was doing.

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

He was inducted in Brunswick, Georgia on 15 December 1970.  He completed his basic training at Fort Jackson, South Carolina and was transferred to Fort Knox, Kentucky to undergo advanced individual training (AIT) as an armor crewman.

On 20 April 1971 nonjudicial punishment was imposed against him for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, and restriction.

Upon completion of his AIT he was transferred to Fort Riley, Kansas on 3 June 1971.  

On 17 February 1972 nonjudicial punishment was imposed against him for being AWOL from 8 November 1971 to 20 December 1971.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, and restriction.

The applicant again went AWOL from 3 April to 23 April 1972 and from 1 May to 29 May 1972.  He was apprehended by civil authorities and was returned to military control where charges were preferred against him at Fort Jackson. 

On 1 June 1972, after being afforded them opportunity to consult 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.  He acknowledged that he understood the possible effects of an undesirable discharge, that he had not been coerced by anyone with respect to the discharge request and elected not to submit a statement in his own behalf.

The appropriate authority (a brigadier general) approved the request for discharge on 14 June 1972 and directed that he be furnished with an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 16 June 1972 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 3 months, and 3 days of total active service and had 92 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.  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.  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 applicant or the evidence of record.  Accordingly, they are not sufficiently mitigating when compared to the seriousness of his offense 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

___sk ___  ___rvo __  __le ____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031928	
SUFFIX		
RECON		
DATE BOARDED	2000/04/05	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1972/06/16	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	689/GOOD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689 	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.