MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:         
	 


	BOARD DATE:            2 December 1998
	DOCKET NUMBER:   AC97-09945

	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.



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 discharge under other than honorable conditions be upgraded to honorable.  

APPLICANT STATES:  That he was sent to the hospital emergency room in Atlanta, Georgia due to the intense pain in his head and was in the hospital when he should have been at his unit at Fort Stewart, Georgia.  He further states that he informed his OIC and also informed the provost marshal’s office that he had been robbed.  He goes on to state that he was held at Fort McPherson, Georgia because he had legally purchased a stolen gun.  He goes on to state that his records contain blemishes that were through no fault of his own and he desires his discharge to be upgraded and the blemishes removed from his records.   

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

The applicant enlisted in Atlanta, Georgia on 21 May 1973 for a period of 3 years and training as a lineman.  He successfully completed his training and was transferred to Germany on 6 March 1974.  He was promoted to the pay grade of E-4 on 1 July 1974.

On 23 April 1976 he reenlisted for a period of 4 years and training as a manual central office repairman.  He departed Germany on 30 April 1976 to Fort Gordon, Georgia to attend training in his new military occupational specialty (MOS).  Upon completion of his training he was transferred to Fort Stewart with a report date of 15 August 1976.

The applicant failed to report as directed and was reported as AWOL until he surrendered to military authorities at Fort McPherson on 23 August 1976.  He again went AWOL on 24 August 1976 and remained absent until 1 September 1976.  Nonjudicial punishment (NJP) was imposed against him on 10 September 1976 for his AWOL offenses.  His punishment consisted of a reduction to the pay grade of   E-3 and a forfeiture of pay. 

The applicant again went AWOL on 23 September 1976 and remained absent until he was apprehended by military authorities in Atlanta on 14 January 1977.  He was then transferred to the Personnel Control Facility at Fort Knox, Kentucky, where charges were preferred against him.

On 28 January 1977, 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 admitted guilt to the charges against him or a lesser included offense which authorized a bad conduct or dishonorable discharge.  He also elected to submit a statement in his own behalf in which he asserted that he went AWOL because his job became boring, his wife left him, he lost his wallet containing $600.00, he could not support his family, and because the Army did not put forth enough effort to help him.

The appropriate authority approved his request on 11 February 1977 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 25 February 1977, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served 3 years, 4 months, and 29 days of total active service and had 129 days of lost time due to AWOL.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 15 July 1997.  However, because he did not apply within that board’s 15-year statute of limitations, that board was precluded from reviewing his application.  This Board accepted his application in lieu of a DD Form 149.

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 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 appear to be appropriate considering all of the facts of the case.

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.   

4.  The applicant requested a discharge for the good of the service in order to avoid a trial by court-martial and the possibility of receiving a felony conviction.  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 the offense for which he was charged and his otherwise undistinguished record.    

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

__rvo____  __gp____  ___jhk __  DENY APPLICATION




						Loren G. Harrell
						Director



INDEX

CASE ID
AC97-09945
SUFFIX

RECON

DATE BOARDED
1998/12/02
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
1977/02/25
DISCHARGE AUTHORITY
AR635-200
DISCHARGE REASON
A70.00
BOARD DECISION
NC
REVIEW AUTHORITY

ISSUES         1.  A70.00

2.

3.

4.

5.

6.