MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 August 2000
	DOCKET NUMBER:   AR1999033646

	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. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Calvin M. Fowler		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 26 years have passed since his discharge and he was 16 years of age at the time.  He goes on to state that he was very immature and believes that he has paid for his dumbness by now and he is also very sick with Acquired Immune Deficiency Syndrome (AIDS) now.

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

He enlisted with parental consent on 22 December 1971 at the age of 17, in Newark, New Jersey, for a period of 2 years.  He was transferred to Fort Dix, New Jersey to undergo his training.  He completed his basic training and was transferred to another unit at Fort Dix on 20 March 1972 to undergo advanced individual training (AIT).

On 24 April 1972 while in AIT, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 13 April to 23 April 1972.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

He was convicted by a summary court-martial on 23 May 1972 of being AWOL from 28 April to 16 May 1972 and breaking restriction.  He was sentenced to confinement at hard labor for 21 days and a forfeiture of pay.

On 21 June 1972, NJP was imposed against him for being AWOL from 19 June to 20 June 1972.   His punishment consisted of a forfeiture of pay, extra duty and restriction.

He was transferred to Germany on 10 September 1972 for duty as a supply clerk and although the facts and circumstances surrounding his administrative discharge are not present in the available records, they do show that he was charged with robbery and assault with intent to commit sodomy.

On 23 January 1973, after consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial.

The appropriate authority approved the request on 1 February 1973 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 16 February 1973 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 and 1 day of total active service and had 54 days of lost time due to AWOL.

On 17 February 1976, 6 July 1977, and 7 November 1980, the Army Discharge Review Board (ADRB) reviewed the applicant’s discharge to determine if an upgrade was warranted.  In each review the ADRB denied his request.

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.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  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 of 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, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions regarding the charges against him have been noted by the Board and appear to be without merit.  After being afforded the opportunity to assert his innocence before a trial by court-martial, 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.  In doing so he admitted guilt to the charges against him.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the seriousness of the offenses for which he was charged. 

4.  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__  ___js  ___  ___cmf__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999033646	
SUFFIX		
RECON		
DATE BOARDED	2000/08/03	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1973/02/16	
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.