MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            12 January 2000
	DOCKET NUMBER:   AR1999032837

	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. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Luther L. Santiful		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.

APPLICANT STATES:  That he had more than enough time and overseas service to meet the requirement for an upgrade of his discharge and that his legal counsel at the time told him that his discharge would automatically be upgraded. He also states that his social security account number (SSAN) is incorrect and provides a copy of his SSAN card. 

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

The applicant was inducted in Columbus, Ohio on 30 January 1968 and was transferred to Fort Jackson, South Carolina for basic training.  He successfully completed his basic training and was then transferred to Fort Gordon, Georgia to undergo advanced individual training (AIT) as a radio relay and carrier operator. 

On 17 July 1968 he was convicted by a special court-martial of being AWOL from 5 June to 4 July 1968.  He was sentenced to confinement at hard labor for 6 months (suspended for 6 months), a reduction to the pay grade of E-1, and a forfeiture of pay.

On 18 October 1968 he was transferred to Vietnam where he remained until he was granted ordinary leave for compassionate reasons to return to the United States for a period of 21 days commencing on 21 January 1969.

The applicant failed to return as scheduled and was reported as AWOL effective 12 February 1969.  He remained absent until he was returned to military control at Fort Meade, Maryland on 7 May 1969.

On 4 June 1969 he was convicted by a special court-martial of being AWOL from 12 February through 6 May 1969.  He was sentenced to confinement at hard labor for 2 months. 

He again went AWOL on 19 June 1969 and was apprehended by civil authorities in Urbana, Ohio on 17 October 1969.  On 22 October 1969, while awaiting transfer to military authorities, he attempted to break out of jail.  He was unsuccessful and was charged with an attempted jail-break.  He was arraigned in municipal court, bond was set and he was bound over to the Grand Jury but was not indicted.  He was confined in the Columbus, Ohio workhouse and was returned to military control on 23 December 1969.  Charges were preferred against him on 9 January 1970.

After consulting with counsel the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, in lieu of trial by court-martial.  He indicated in his request that he had not been subjected to coercion with respect to the request for discharge, and that he had been advised of the implications attached to it.  

The appropriate authority approved his request and he was discharged under other than honorable conditions on 27 January 1970 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 1 year, 2 months, and 13 days of total active service and had 285 days of lost time due to AWOL and confinement based on information contained in temporary records.  He had served 2 months and 25 days in Vietnam and was awarded the Vietnam Service Medal and the Republic of Vietnam Campaign Medal.  The SSAN listed on his DD Form 214 is correct.

There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board for and upgrade of his discharge within that board’s 15-year statute of limitations. 

The application submitted by the applicant had another person’s name and SSAN typed in the appropriate blocks and the applicant apparently lined through the information because it did not apply to him.

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.  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 and appear to be without merit.  There are no automatic provisions for upgrading an administrative discharge nor are there any indications in the available records to show that the applicant was informed of such.  Therefore, his contentions are not sufficiently mitigating when compared to the seriousness of his offense and his otherwise undistinguished record of service.

5.  It appears that the applicant obtained an application (DD Form 149) to apply to the Board which contained incorrect information and the applicant’s issue deals with the information on the application.  As such, there does not appear to be an error in his military records, but simply on the application that he received sources unknown to the Board.  Accordingly, there is no basis for action by the Board on that issue.

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

____js___  ___inw __  ___ls ___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999032837	
SUFFIX		
RECON		
DATE BOARDED	2000/01/12	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/01/27	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	CH10/GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689 	144.7000/A70.00/GD OF SVC	
2.		
3.		
4.		
5.		
6.