MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 April 2000
	DOCKET NUMBER:   AR1999034553

	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.

	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Fred Eichorn		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Ms. Sherri V. Ward		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 an honorable discharge.

APPLICANT STATES:  That after a stellar service record with no prior problems, he believes that it was unjust to be labeled with the type of discharge he received.

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

On 2 August 1967, he enlisted in the Army for 3 years in the pay grade of E-1.  He successfully completed his training as a field artillery crewman.

Nonjudicial punishment was imposed against the applicant on 4 March 1969 for disobeying a lawful order.  His punishment consisted of a forfeiture of pay.

He went AWOL on 30 October 1969 and he remained absent until he was apprehended by civil authorities and returned to military control on 14 November 1977.

On 21 November 1977, the applicant was notified that charges were pending against him for being AWOL.  He acknowledged receipt of the notification and, after consulting with counsel, he waived his rights and submitted a request for discharge for the good of the service in lieu of trial by court-martial.

The request for discharge was approved by the appropriate authority on 21 January 1978.  Accordingly, on 1 February 1978 he was discharged 
under other than honorable conditions, 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 completed 2 years, 5 months and 11 days of total active service and he had a total of 2,939 days of lost time due to AWOL.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge with 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 that 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 submit a request for discharge for 

the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the 
individual's admission of guilt.  Although an honorable or general discharge is authorized, 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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not supported by the evidence of record.  The records clearly show that the applicant was absent for 2,939 days and his request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received and the possibility of a felony conviction.  While he may now think otherwise, he should not be allowed to change his mind at this late date.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

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

___sw___  ___fe___  ___cla___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999034553	
SUFFIX		
RECON		
DATE BOARDED	2000/04/13	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1978/02/01	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  708	144.7100/A71.00	
2.		
3.		
4.		
5.		
6.