MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 August 2000
	DOCKET NUMBER:   AR1999033841

	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 to honorable.

APPLICANT STATES:  That he desires to clear his record for his children’s benefit and his own peace of mind after the readjustment of his separation and divorce from his wife at the time.  He further states that he has since remarried, believes that he has become a substantial citizen, and would still serve his country if called upon.  He also states that his records should be reviewed and in support of his application he submits an Exemplary Rehabilitation Certificate from the Department of Labor.

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

He enlisted in Portland, Oregon on 24 January 1969 for a period of 2 years.  He successfully completed his training and was transferred to Vietnam on 12 July 1969 for duty as a cannoneer.  

On 20 June 1970 he reenlisted in the pay grade of E-4 for a period of 3 years, assignment to an aviation unit, and duty as a door gunner.

On 21 December 1970 nonjudicial punishment was imposed against him for misappropriating a government vehicle and for being in an off-limits area.  His punishment consisted of a forfeiture of $50.00.

He departed Vietnam on 26 December 1970 and was transferred to Fort Hood, Texas.  He was awarded the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Air Medal with numeral “6”, and the Army Commendation Medal first oak leaf cluster for his service in Vietnam.

His records show that he went absent without leave (AWOL) from 3 May to 22 June 1971, from 6 July to 27 July 1971 and from 15 August to 1 September 1971.  Charges were preferred against him at Fort Lewis, Washington when he was returned to military control at that station.

After consulting with counsel he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  He indicated in his request that he was doing so without any coercion and that he had been advised of the implications attached to such a request.  He also submitted a statement in his own behalf whereas he asserted that he could not adjust to life at Fort Hood, that his wife had informed him that she wanted a divorce and he went AWOL to try and work things out.  He subsequently met a girl and asked her to marry him and while he was AWOL, she experienced a miscarriage and he stayed with her.  He decided to return to the military shortly after his divorce was final and he realized at that time that he simply could not adjust to life in the military.
The appropriate authority (a major general) approved his request for discharge on 13 August 1971 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 1 September 1971 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 4 months and 13 days of total active service and had 91 days of lost time due to AWOL.

There is no indication in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-years statute of limitations. 

The Exemplary Rehabilitation Certificate dated 14 December 1981 indicates that the applicant established a record of at least 3 years of good character, exemplary conduct, activities and habits subsequent to his discharge.

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 supporting documents submitted by the applicant with his application have been noted by the Board.  However, they are not sufficiently mitigating to warrant an upgrade of his discharge when compared to the nature of his offenses and the circumstances surrounding his discharge. 

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

__esc___  ___js____  __cmf___  DENY APPLICATION

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

INDEX

CASE ID	AR1999033841	
SUFFIX		
RECON		
DATE BOARDED	2000/08/03	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/09/01	
DISCHARGE AUTHORITY	AR 635-200, CH10	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/GD OF SVC	
2.		
3.		
4.		
5.		
6.