MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 January 1999                                       
	DOCKET NUMBER:   AR1999014703

	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. Loren G. Harrell		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful 		Chairperson	
	Mr. Robert W. Garrett 		Member	
	Mr. Curtis L. Greenway 		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 under other than honorable conditions (UOHC) discharge be upgraded to an honorable discharge (HD).

APPLICANT STATES:  That he should not have received a UOHC discharge because he was told differently.  He adds that his father was ill and he did not return to Germany following an emergency leave.  He said that the counsel who was assigned to help him said that he didn’t like soldiers like him and wanted to see him in jail.

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

A resident of the State of Kentucky, he enlisted in the Regular Army on 18 June 1974 for 4 years and an assignment with the 194th Armored Brigade, Fort Knox, Kentucky.  Upon completion of the required military training, he was assigned to the 194th Armored Brigade as an armor crewman, serving at Fort Knox until November 1976 when he was reassigned to Germany.  While at Fort Knox, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for:  1 day of AWOL on 15 October 1975; 3 days of AWOL from 29-31 December 1975; and 16 days of AWOL from 9-24 February 1976.

In Germany, the applicant went AWOL from 13 July 1977 to 28 September 1977 when he surrendered to military authorities at Fort Knox.  He was placed in the Personnel Control Facility and court-martial charges were preferred against him. He consulted with legal counsel on 4 October 1977.  He was advised of the charges against him and of the fact that he could receive a punitive discharge if convicted by a court-martial.  He was also advised that he could voluntarily request discharge for the good of the service in lieu of trial by court-martial and, if approved, could receive no worse than a UOHC discharge.

The applicant requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Chapter 10, AR 635-200.  He request was forwarded to the approving authority with recommendations throughout his chain of command that he be given a UOHC discharge.  On 7 November 1977, the approving authority approved the applicant’s request and directed that he receive a UOHC discharge.  On 29 November 1977, the applicant was separated with a UOHC discharge.  He had 3 years, 2 months, and 10 days of creditable service and 94 days of lost time due to AWOL.

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.  Army policy states that although an honorable or general discharge is authorized, a discharge UOHC 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 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.

2.  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. There is no indication that he received less than competent legal counsel or that his request was made under coercion or duress.  The applicant's 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.

3.  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

___LLS _  __RWG__  __CLG __  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999014703	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990128	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	19771129	
DISCHARGE AUTHORITY	AR 635-200/10	
DISCHARGE REASON	A71.00	
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	110.0000	
2.	144.0133	
3.		
4.		
5.		
6.