MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 October 2001
         DOCKET NUMBER: AR2001058577

         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 V. O’Connor, Jr.		Chairperson
Mr. Donald P. Hupman, Jr.		Member
Ms. Regan K. Smith		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: In effect, that his undesirable discharge be upgraded to a general discharge.

APPLICANT STATES: In effect, that he entered the Army in September 1969 and was shot in September 1970, when he was not on duty. He further states that he still has the bullet in him and believes that he should have been discharged in 1970. However, for reasons he cannot explain, he was kept around until he was discharged. He also states that he knows he went about things in the wrong way but he did not know any other way at the time and he has since changed. In support of his application he submits two third party character references from a minister and a friend of 5 years.

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

He enlisted at Charlotte, North Carolina on 11 September 1969 for a period of 3 years under the airborne training duty option. He completed his basic training at Fort Bragg, North Carolina, and was transferred to Fort Gordon, Georgia on 8 December 1969 to undergo his advanced individual training (AIT).

On 27 January 1970, nonjudicial punishment (NJP) was imposed against him for unlawfully altering a profile by changing it from 2 days to 12 days. His punishment consisted of a forfeiture of pay, extra duty and restriction.

The applicant went absent without leave (AWOL) on 1 February 1970 and remained absent until he was returned to military control at Fort Bragg on 23 March 1970. He was convicted of the AWOL offense by a summary court-martial on 8 April 1970. He was sentenced to confinement at hard labor for 1 month (suspended), a forfeiture of pay and reduction to the pay grade of E-1.

Nonjudicial punishment was again imposed against him on 21 April 1970 for being AWOL from 20 April to 21 April 1970. His punishment consisted of a forfeiture of pay and restriction.

The applicant departed Fort Bragg on 3 May 1970, en route to Fort Jackson, South Carolina, to attend AIT. He instead went AWOL and remained absent until he was returned to military control at Fort Bragg on 7 September 1970. His records also show that at the time of his return, he had been shot on 3 September 1970 (while in AWOL status) by a 22 caliber bullet and the bullet was still present in the lower left quadrant. He received medical treatment for his wound while he was incarcerated in the post stockade. He was convicted by a special court-martial of the AWOL offense on 26 October 1970 and was sentenced to confinement at hard labor for 5 months and a forfeiture of pay. He was transferred to Fort Riley, Kansas to serve his confinement on 3 November 1970.

On 8 January 1971, he was transferred to Fort Sill, Oklahoma to again undergo AIT. On 10 February 1971, NJP was imposed against him for disobeying a lawful order from a senior noncommissioned officer and being AWOL from 5 February to 6 February 1971. His punishment consisted of a forfeiture of pay, extra duty and restriction.

He completed his AIT as a cannoneer and was transferred to Fort Benning, Georgia to undergo airborne training on 12 March 1971. He again went AWOL on 1 April to 7 April 1971. NJP was imposed against him on 12 April 1971. His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay.

He again went AWOL from 20 April to 21 April 1971 and NJP was imposed against him on 21 April 1971. His punishment consisted of a forfeiture of pay and restriction.

He did not complete his airborne training and received orders transferring him to Fort Lewis, Washington with a report date of 25 April 1971. He again went AWOL until he was returned to military control and given a new report date of 7 May 1991. He again went AWOL until he was returned to military control on 30 August 1971. He went AWOL again on 4 October to 6 October 1971 and from 6 October to 22 November 1971. He was returned to military control at Fort Bragg and charges were preferred against him for the AWOL offenses.

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. He also elected not to submit a statement in his own behalf. However, during an interview with his commander, the applicant indicated that he kept going AWOL because he had received orders to Fort Lewis and simply did not want to go there.

The appropriate authority (a lieutenant general) approved his request on 31 January 1972 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 7 February 1972, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 3 months and 16 days of total active service and had 405 days of lost time due to AWOL and confinement.

He applied to the Army Discharge Review Board (ADRB) in 1975 and again in 1984 for an upgrade of his discharge. He contended at that time that he went AWOL because he had been promised training in the supply field that never materialized and he felt like he had been betrayed. He also stated that he did not want to go to Fort Lewis and that while AWOL, he ran short of money and resorted to stealing. As a result he was shot; however, he was in the wrong and harbored no ill will towards the person who shot him. He further stated that he would not have had a problem had he been able to serve in the way he wanted, instead of the way the Army wanted him to serve. The ADRB determined that he had been properly discharged and voted unanimously to deny both of his applications.

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 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 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 the charges against him and his otherwise undistinguished record of service.

5. The applicant’s contentions and supporting documents have been noted by the Board; however, given the extensive length of his absence and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant relief.


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 this 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

__dh____ _rvo ____ ___rks___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058577
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/10/16
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1972/02/07
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.