MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 April 2000
	DOCKET NUMBER:   AR1999033761

	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 at least a general discharge.

APPLICANT STATES:  That he desires his discharge to be upgraded because he had exemplary service and was told that his discharge would be upgraded to a general discharge within 6 months.  He further states that at the time he was undergoing a lot of emotional stress due to finding out that his girlfriend gave up their newborn child for adoption.  He further indicates that he has been incarcerated since May 1981 and has held several jobs while in incarceration. 

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

He enlisted in Portland, Oregon with a moral waiver on 10 December 1979 for a period of 3 years and assignment to the 9th Infantry Division at Fort Lewis, Washington.  He successfully completed his training as a tactical wire operations specialist at Fort Gordon, Georgia and was transferred to Fort Lewis on 24 April 1980 with a report date of 9 May1980.  He failed to report as ordered and remained AWOL until he surrendered to military authorities at Fort Lewis on 18 May 1980.

Nonjudicial punishment was imposed against him on 20 May 1980 for being AWOL from 9 May to 18 May 1980.  His punishment consisted of a forfeiture of pay and extra duty.

He again went AWOL on 22 May 1980 and remained absent until he surrendered to military authorities in Vancouver, Washington on 22 July 1980.  He was returned to Fort Lewis where charges were preferred against him.  

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.  He also elected to submit a statement in his own behalf whereas he stated that he could not stand the stress of military life and the ways a person has to live.  He also stated that he had a job waiting for him that paid $5.25 an hour, which was quite a bit more than he would make in the Army, that he wished to be free and back on the street where he belonged and where he could wear his hair and dress as he liked, and that it would best for all concerned if he could live his life without the stress of military life.

The appropriate authority (a major general) approved his request and he was discharged under other than honorable conditions on 7 August 1980 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 5 months, and 24 days of total active service and had 70 days of lost time due to AWOL.

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. 

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 experiencing personal problems of such a nature that would justify his going AWOL.  Therefore, his contentions are not sufficiently mitigating when compared to his extensive absence during a relatively short period of service and his otherwise undistinguished record of service.
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	AR1999033761	
SUFFIX		
RECON		
DATE BOARDED	2000/04/05	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1980/08/13	
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.