MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            26 February 2002
	DOCKET NUMBER:   AR2001063440

	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 a general discharge.

APPLICANT STATES:  In effect, that he desires to have his discharge upgraded because he believes that he served his time, to include a tour in Vietnam, and because he had been diagnosed as having the “HIV” virus.  He also states that he does not believe that he has much time left and does not want to die with such a dark mark on his soul.

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

The applicant enlisted in New York City, New York on 29 November 1966, for a period of 3 years and training in the administrative career group.  He completed his training and was transferred to Fort Campbell, Kentucky.

His records show that he served in Vietnam from 22 November 1967 to 21 November 1968. 

He was convicted by a special court-martial on 6 April 1970 of being absent without leave (AWOL) from 2 April 1969 to 22 July 1969 and from 13 October 1969 to 6 March 1970.  He was sentenced to confinement at hard labor for 3 months, reduction to the pay grade of E-1 and a forfeiture of pay.

He was again convicted by a special court-martial on 4 November 1971 of being AWOL from 22 December 1970 to 6 January 1971, from 9 January to 25 January 1971, from 28 January to 13 April 1971 and from 27 April to 28 September 1971. He was sentenced to confinement at hard labor, reduction to the pay grade of E-1 and a forfeiture of pay. 

He again went AWOL on 7 January 1972, and began a series of returning to military control and again going AWOL.  He was eventually returned to military control after he was apprehended by civil authorities and was arrested for loitering in Bronx, New York, for the purpose of prostitution on 14 February 1974. He was remanded to the Armed Forces Police in Brooklyn, New York, and was transferred to Fort Dix, New Jersey, where charges were preferred against him. 

After consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He also elected not to submit a statement in his own behalf. 

The appropriate authority (a major general) approved his request on 28 April 1974, and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 14 May 1974, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 3 years and 27 days of total active service and had 1599 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.  

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 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 and there was not then, nor is there now, any 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.  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 length of his absence as well as his otherwise undistinguished record of service. 

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	AR2001063440	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/02/26	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/05/14	
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.