MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 April 2001
         DOCKET NUMBER: AR2001051267

         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. June Hajjar		Chairperson
Ms. Celia L. Adolphi		Member
Mr. Harry B. Oberg		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 honorable.

APPLICANT STATES: In effect, that his discharge was unjust because his captain was prejudiced, that he is now very sick and he now needs his discharge upgraded.

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

He initially enlisted in Hopkinsville, Kentucky on 10 May 1968 for a period of 3 years. He completed his training and was transferred to Vietnam on 5 October 1968 for duty as a rifleman. He was advanced to the pay grade of E-3 on 7 October 1968.

He reenlisted on 13 May 1969 for a period of 6 years and was advanced to the pay grade of E-4 on 6 July 1969. He departed Vietnam on 7 October 1969 and was transferred to Fort Carson, Colorado where he remained until he was transferred to Germany on 26 February 1971.

The applicant went absent without leave from 2 September to 19 September 1970. However, the record is silent as to any punishment imposed for that offense.

On 14 June 1971, nonjudicial punishment (NJP) was imposed against him for three specifications of disobeying a lawful order. His punishment consisted of a reduction to the pay grade of E-3 and a forfeiture of pay.

On 6 July 1971 NJP was imposed against him for failure to go to his place of duty (violation of Article 86, Uniformed Code of Military Justice (UCMJ)). His punishment consisted of a reduction to the pay grade of E-2.

The applicant had NJP imposed against him again on 13 July and 27 July 1971 for violations of Article 86, UCMJ and his punishment consisted of extra duty, restriction and a suspended reduction to the pay grade of E-2 for 90 days.

On 14 March 1972, the applicant’s commander initiated action to bar him from reenlistment. He cited as the basis for his recommendation that the applicant was pending court-martial charges for extended periods of being AWOL, breaking restriction, communicating a threat to a commissioned officer and indicated that he was pending elimination under the provisions of Army Regulation 635-212 for unfitness. He also cited the applicant’s disciplinary record and indicated that his conduct and efficiency ratings were unsatisfactory. The applicant elected not to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment on 27 March 1972.

The actual facts and circumstances surrounding his administrative discharge are not present in the available records. However, his records do show that he requested a discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and the appropriate authority (a major general) approved his request on 1 May 1972 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 11 May 1972 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 3 years, 11 months and 14 days of total active service and had 18 days of lost time.

A review of an enlisted efficiency report (DA Form 2166-4) contained in his official records covering the period from May 1971 to August 1971 rated the applicant either unsatisfactory or below average. The comments by his rater (a staff sergeant) indicate that the applicant had to be driven to complete all assigned tasks and that he was discourteous, unloyal, and should be eliminated from the service. The applicant was notified of the adverse report by the reviewer (a captain/platoon leader) and he elected not to make a rebuttal statement.

There is no indication that the applicant has ever applied to the Army Discharge Review Board for an upgrade of his discharge using a DD Form 293 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. Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed by counsel on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge. A discharge under other than honorable conditions is normally considered appropriate and there are no automatic provisions for an 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. In the absence of evidence to the contrary, it must be presumed that 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, it appears that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. 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. Therefore, it appears that after consulting with counsel, 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.

4. The applicant’s contentions that his discharge was unjust and based on an officer’s prejudice have been noted by the Board and the Board finds that they are not supported either by the evidence submitted with his application or the evidence of record. Furthermore, the applicant had the option of trial by court-martial whereas he could assert his innocence and prove his allegation of prejudice on the part of the officer and he chose not to do so. He instead elected to request discharge in lieu of trial by court-martial.

5. 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.

6. 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

___hbo__ ___jh ___ ___cla___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001051267
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/04/05
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1972/05/11
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.