MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            26 February 2002
	DOCKET NUMBER:   AR2001063170

	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. JoAnn H. Langston		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		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 an honorable discharge.

APPLICANT STATES:  In effect, that at the time he requested a hardship discharge and received a discharge under other than honorable conditions instead.  However, a medical discharge would have been more appropriate at the time.  He further states that he simply wants help to be a part of his country and to correct the wrongs of his youth.  He also states that he was willing to fight for his country in Vietnam and desires to be buried with a flag on his casket. 

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

He enlisted with parental consent on 22 January 1974, for a period of 3 years, airborne training and assignment to the 82d Airborne Division.  At the time of his enlistment, his mother indicated that he had quit school, was not interested in going back, and it was her hope that he would benefit from going into the Army.  He completed his training and was transferred to Fort Bragg, North Carolina, for duty as a light weapons infantryman. 

On 10 September 1974, he went absent without leave (AWOL) and remained absent until he surrendered to military authorities at Pease Air Force Base, New Hampshire, on 22 January 1975.  He was returned to authorities at Fort Dix, where charges were preferred against him.

At the time he went AWOL, his commander conducted an inquiry and concluded that there was no evidence of undue strife, financial difficulty or coercion that contributed to his going AWOL.  He opined that it was the applicant’s gross immaturity, a failure to accept responsibility and the routine of Army life that led to his going AWOL.

He was convicted by a special court-martial on 13 February 1975 of being AWOL from 10 September 1974 to 22 January 1975.  He was sentenced to confinement at hard labor for 15 days and a forfeiture of pay.

The applicant again went AWOL from 1 April to 7 April 1975, when he was returned to military control at Fort Dix, New Jersey.  He again departed AWOL from 9 April to 29 April 1975, and from 30 April to 16 June 1975. The record is silent as to any punishment imposed for those AWOL offenses.

He again went AWOL on 9 April 1975 and remained absent until he was apprehended by civil authorities on 16 June 1975.  He was transferred to military authorities at Fort Devens, Massachusetts, on 17 June 1975, and was subsequently returned to Fort Dix, where charges were preferred against him.

After consulting with counsel, the applicant submitted a request for discharge for the good of the service on 20 June 1975, under the provisions of Army Regulation 635-200, chapter 10, 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 to submit a statement in his own behalf whereas he contended that his father was ill and he had become the main support for his father and family.  He further contended that he had a good job and did not want to lose it.

The appropriate authority (a major general) approved his request on 12 July 1975 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 17 July 1975, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 9 months, and 23 days of total active service and had 244 days of lost time due to AWOL and confinement.

There is no evidence 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.  There is also no indication in his records that he ever made an effort to apply for a hardship discharge while he was on active duty. 

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.  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 the number and length of his absences as well as 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

___jhl ___  __rtd____  __rjw ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001063170	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/02/26	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/07/17	
DISCHARGE AUTHORITY	AR635-200/ch10 	
DISCHARGE REASON	Good of svc	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/a70.00	
2.		
3.		
4.		
5.		
6.