MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            21 February 2002
	DOCKET NUMBER:   AR2001064347

	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:

	Mr. George D. Paxson		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Melvin H. Meyer		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 or honorable discharge.

APPLICANT STATES:  In effect, that he was suffering from depression and psychosis when he received an undesirable discharge.  He further states that he was serving his second enlistment when he was told that he was being transferred to Germany for 4 years.  He goes on to state that he refused to go to Germany and was given an undesirable discharge.

COUNSEL CONTENDS:  In effect, that the applicant has suffered the consequences of an undesirable discharge for over 20 years and should have his discharge upgraded in order to give him a more positive future and outlook on life.

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

He enlisted in Lubbock, Texas on 7 July 1972, for a period of 3 years and assignment to Fort Hood, Texas.  He successfully completed his training and was transferred to Fort Hood for duty as a wheel vehicle mechanic.

On 28 January 1975, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 29 January 1975, for a period of 3 years and assignment to Fort Sill, Oklahoma.  He was transferred to Fort Sill on 14 April 1975, and was advanced to the pay grade of E-4 on 1 August 1975.

On 20 February 1976, nonjudicial punishment was imposed against him for stealing 10 wrenches.  His punishment consisted of a reduction to the pay grade of E-3 and extra duty.

The applicant also received assignment instructions in February 1976 notifying him that he would be transferred to Germany in July 1976.

On 4 June 1976, he went absent without leave (AWOL) and remained absent until he was apprehended by civil authorities in Colorado on 26 September 1976, and was returned to military control at Fort Carson, Colorado, where charges were preferred against him.

On 4 October 1976, 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.  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 he went AWOL because he did not want to go to Germany and because he had been trained as a mechanic but had been assigned to the tool room.  He contended that he did not like being in a cage all the time and at that point did not think he would be of any good to the Army.  He also stated that it was his intent to work as a mechanic and return to farm life because he missed them both.

The appropriate authority (a brigadier general) approved his request on 28 October 1976 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 15 November 1976, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 4 years and 17 days of total active service and had 114 days of lost time due to AWOL.

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.  The applicant is currently incarcerated in Texas.

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 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

__gp  ___  __tap___  __mm___  DENY APPLICATION

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

INDEX

CASE ID	AR2001064347	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/02/21	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1976/11/15	
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.