MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           23 February 2000                  
	DOCKET NUMBER:   AR1999032135

	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. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner 		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 it was his understanding that his discharge would be upgraded after 1 year.

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

The applicant enlisted in Montgomery, Alabama on 11 December 1972 for a period of 3 years, assignment to Fort Rucker, Alabama, and training as a firefighter.  

He successfully completed his basic training at Fort Knox, Kentucky and was transferred to Fort Rucker, Alabama on 4 March 1973 to undergo training as a firefighter.

On 22 May 1973 nonjudicial punishment was imposed against him for two specifications of failure to go to his place of duty.  His punishment consisted of a forfeiture of pay and restriction.

The applicant then went AWOL from 22 June to 25 June 1973 and from 2 July to 22 July 1973.

The facts and circumstances surrounding the applicant’s administrative separation are not present in the available records.  However, his records do contain a duly constituted report of separation signed by the applicant which shows that he was discharged under other than honorable conditions on 20 August 1973 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 7 months, and 15 days of total active service and had 25 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.  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 that he understood his discharge would be upgraded after 1 year appear to be without merit because there was not then nor is there now any provisions for an automatic upgrade of a discharge. Accordingly, his contention is 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 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___      __eb___    __rjw___    DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999032135	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/02/23	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	1973/08/20	
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.