MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 February 2002
	DOCKET NUMBER:   AR2001062623

	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:

	Ms. June Hajjar		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger W. Able		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 a general discharge.

APPLICANT STATES:  In effect, that he was unjustly discharged while in basic training.  He further states that shortly after going to basic training, he received word from his wife that she and his child were being evicted for not paying the rent.  He goes on to state that he requested a week off in order to take care of his family and was denied any time off by the commander.   He continues by stating that his commander gave him a lot of undesirable details in an attempt to make him go absent without leave (AWOL).  He also states that he went AWOL and after he was caught, he was placed in the post stockade and was subsequently discharged.

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

He enlisted in the United States Army Reserve under the delayed entry program on 28 February 1975.  He enlisted in the Regular Army on 30 May 1975 for a period of 3 years, training as a field artilleryman, and assignment to Fort Sill, Oklahoma.

He was transferred to Fort Leonard Wood, Missouri to undergo his basic training. On 6 June 1975, nonjudicial punishment was imposed against him for disobeying a lawful order from a noncommissioned officer.  His punishment consisted of a forfeiture of pay and correctional custody for 7 days.  At the time punishment was imposed, the applicant was informed in writing of the rules regarding his presence and conduct while in correctional custody.  He was also informed that the maximum punishment he could receive for escape from correctional custody was a dishonorable discharge, forfeiture of all pay and allowances, or confinement at hard labor for 1 year.  

On 11 June 1975, court-martial charges were preferred against him for escaping from correctional custody on 8 June 1975.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service on 19 June 1975, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him, or of lesser-included offenses, which authorized the imposition of a bad conduct or dishonorable discharge.  He further elected not to submit a statement in his own behalf.

The appropriate authority (a major general) approved his request on 10 July 1975 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 10 July 1975, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 months and 11 days of total active service.

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an 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.  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.  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 and supporting documents have been noted by the Board.  However, the Board notes that 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 his otherwise undistinguished record of service during such a short period of time.  

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 this 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

___kak__  ___ra___  ___jh  ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001062623	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/02/05	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/07/10	
DISCHARGE AUTHORITY	AR635-200/CH10 	
DISCHARGE REASON	GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.