MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 July 1999
         DOCKET NUMBER: AR1999015235

         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. Loren G. Harrell		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Calvin M. Fowler		Chairperson
Mr. Thomas N. Kuhn		Member
Mr. Raymond J. Wagner		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)

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APPLICANT REQUESTS: That his undesirable discharge be upgraded to a general discharge.

APPLICANT STATES: In effect, that his command at the time abused their authority when it decided to give him a bad discharge and that the punishment was too harsh and much worse than most people get for the same offense. He further states that the presumption of regularity does not apply because his ability to serve was impaired by his youth and immaturity as well as his use of drugs and alcohol. He goes on to state that he was a good soldier with average conduct and efficiency ratings, that nonjudicial punishment was only imposed against him once, that he has been a good citizen since his discharge and has obtained a concealed weapons permit, and that clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge. He also contends that the situation involving the charges was not as it appears in his records and that he was simply trying to bring to the attention of authorities that procedures were not being properly followed to prevent the theft of weapons; however, his plan backfired on him and he was given a bad discharge. In support of his application he submits seven letters of support and copies of documents contained in his records.

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

The applicant enlisted with parental consent on 5 February 1971 for a period of 3 years and training as a seaman. He successfully completed his basic training at Fort Lewis, Washington and was transferred to Fort Eustis, Virginia for advanced individual training (AIT). He was in AIT from 10 May to 12 October 1971 and nonjudicial punishment was imposed against him on 9 July 1971 for misconduct. Upon completion of his AIT his conduct and efficiency were rated as “good” and he was transferred to a transportation unit at Fort Eustis.

Although the record is silent as to any punishment imposed, his records indicate that he was AWOL from 1 October to 5 October 1971.

On 8 December 1971 a military investigation was conducted to locate a missing M16 Rifle from the unit arms room. The investigation revealed that the applicant had signed the weapon out of the arms room using a false name and Social Security number.

A statement given by another soldier to investigators revealed, in effect, that the applicant had confided in him that he intended to steal an M16 rifle and that he intended to hide it in the woods and then put it in his suitcase and take it home to California to use for hunting.

The applicant was advised of his rights twice and elected to make a sworn statement in which he admitted to falsifying documents and stealing the rifle. He also indicated that he did not know why he committed the offenses but that he had noticed that it looked like it would be easy to do. He also indicated that he had disassembled the weapon, placed it in plastic bags, and buried it in the woods.

The applicant was placed in pre-trial confinement on 9 December 1971 and charges were preferred against him on 24 December 1971. He was referred to trial by a special court-martial empowered to adjudge a bad conduct discharge.

After consulting with counsel, the applicant submitted a request for discharge 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. At the time he submitted his request on 17 January 1972, he indicated that he had not been subjected to coercion with respect to his request for discharge and that he had been advised of the implications attached to it. He also stated that he understood that if his request for discharge was accepted he could receive an undesirable discharge and that he could be deprived of many or all Army and or Veterans’ benefits. He also elected not to submit a statement in his own behalf.

The applicant’s request for discharge was approved by the appropriate authority and he was discharged under other than honorable conditions on 11 February 1972, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 9 months and 28 days of total active service and had approximately 69 days of lost time due to AWOL and confinement.

The seven letters of support submitted by the applicant with his application consists of a letter from his wife, his mother, and five family friends who assert that the applicant was too young at the time he entered the Army, that he has turned his life around and has become an asset to the community, and that he lives by and demonstrates Christian values on a daily basis.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitation.

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 such a request is that the individual must state that they have been counseled and that they understand the consequences of their request and the effect that a discharge under other than honorable conditions may have on their benefits as well as the influence it may have in civilian life. Additionally, individuals are afforded an opportunity to submit a statement in their own behalf or to explain any mitigating circumstances that may have an effect on the type of discharge they receive. Although an honorable or general discharge is authorized, 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 have been noted by the Board; however, they are not supported by the evidence submitted with his application or the evidence of record. The investigation that was conducted following his misconduct clearly shows that the applicant planned to steal the rifle and that he confided in his friend how he was going to do it as well as his intent to keep it. Furthermore, a request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned as well as an admission that he understood that he could receive a discharge under other than honorable conditions and that he understood the consequences of such. Had there been mitigating circumstances that led to his misconduct, he could have submitted a statement in his own behalf at the time he submitted his request or he could have stood trial by court-martial whereas he could have asserted his innocence based on mitigating circumstances. Accordingly, 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.

4. 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 seriousness of his offenses and his otherwise undistinguished record.

5. The supporting statements have been noted by the Board; however, they are not sufficiently mitigating to warrant relief given the circumstances in this case.

6. 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 the aforementioned requirement.
7. 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

___cmf __ ___tk___ __rjw____ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AR1999015235
SUFFIX
RECON
DATE BOARDED	1999/07/22
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1972/02/11
DISCHARGE AUTHORITY	AR635-200, CH10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00.GOOD OF THE SVC
2.
3.
4.
5.
6.