MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 April 2003
	DOCKET NUMBER:   AR2002080865

	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. Raymond J. Wagner		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Linda M. Barker		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 honorable.

APPLICANT STATES:  That before he dies, he desires that his discharge be upgraded to honorable for his children.

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

He initially enlisted in Indianapolis, Indiana, on 20 May 1966, for a period of 3 years and assignment to Korea.  He successfully completed his training and was transferred to Korea for duty as a cannoneer.  He completed his tour in Korea and was transferred to Fort Carson, Colorado, where he remained until he was honorably released from active duty (REFRAD) in the pay grade of E-4 on 23 May 1969, due to the expiration of his term of service.

The applicant again enlisted in Denver, Colorado, on 22 March 1971, for a period of 3 years.  He was transferred to Fort Knox, Kentucky, where he reenlisted on 22 April 1971, for a period of 4 years and assignment to Vietnam.

He was transferred to Vietnam on 6 September 1971.  He served in Vietnam until 17 April 1972, when he was transferred to Fort Carson.

The applicant departed absent without leave (AWOL) on 21 August 1972 and remained absent until he was returned to military control on 28 August 1972.  He again departed AWOL on 7 September 1972 and remained absent until he surrendered to military authorities on 7 January 1973.  He again departed AWOL on 10 January and remained absent until he was apprehended by civil authorities in Denver on 12 April 1973.  He was returned to military control at Fort Carson, where charges were preferred against him for his AWOL offenses.

On 19 April 1973, 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 acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further elected to submit a statement in his own behalf whereas he asserted that he had a poor attitude towards the Army, that he had no use for the Army and that he knew he would receive an undesirable discharge and he would accept it. 

The appropriate authority (a brigadier general) approved his request on 3 May 1973 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 5 June 1973, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 6 months and 8 days of active service during his current enlistment for a total of 6 years, 5 months and 4 days of total active service and had 221 days of lost time due to AWOL. 

There is no indication in the available records to show that the applicant 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 voluntary 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 was at that time and is still 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.  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 absences during a short period of time.

4.  The applicant’s contentions have been considered by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to his overall record of service.  While the applicant did serve a 7 month tour in Vietnam, his extensive absences as well as the lack of mitigating circumstances to explain his misconduct clearly warranted the discharge he received.
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

___rjw___  __bje ___  ___lb ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002080865	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/04/08	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1973/06/05	
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.