MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 October 2001
         DOCKET NUMBER: AR2001059779

         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. Kathleen A. Newman		Member
Mr. Ronald E. Blakely		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 discharge under other than honorable conditions be upgraded to a general discharge.

APPLICANT STATES: That he was not given proper admonishment at his trial by court-martial and he suffers with Post-Traumatic Stress Disorder. He further states that certain factors led him to go absent without leave (AWOL) and once he was captured he was not given rehabilitative counseling. He goes on to state that many problems have occurred which led him to criminal thinking and he is now in the Texas Prison System. He also states that had he received mental counseling he would not need help today. In an addendum to his application he requests, in effect, that the Board direct Texas Correctional Officials to allow his appearance before the Board at the government’s expense. In support of his application he submits a copy of his high school equivalency and three certificates of training.

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

He enlisted in the Oklahoma Army National Guard (OKARNG) on 5 February 1978. He entered active duty on 26 February 1978 and was transferred to Fort Sill, Oklahoma to undergo his training. He successfully completed his training as a cannon crewman and was honorably released from active duty on 22 June 1978 and was returned to his OKARNG unit.

On 2 July 1979, the applicant’s commander initiated a request to involuntarily order the applicant to active duty based on his unsatisfactory participation and failure to respond to numerous inquiries regarding his unexcused absences.

The request was approved and the applicant was discharged under honorable conditions from the OKARNG on 23 October 1979, the same date he was ordered to active duty at Fort Leonard Wood, Missouri. However, the applicant failed to report as ordered and was reported as AWOL. He remained absent until he was apprehended by civil authorities in Stephensville, Texas and was returned to military control at Fort Sill on 16 July 1980, where charges were preferred against him.

On 24 July 1980 he underwent a mental status evaluation and was psychiatrically cleared for any administrative action deemed appropriate by the commander.

On 29 July 1980, 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 admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He further elected not to submit a statement in his own behalf.

The appropriate authority (a major general) approved his request on 14 August 1980 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 23 October 1979 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 5 months and 19 days of total active service and had 267 days of lost time due to AWOL.

A review of his records shows that in 1998 a request was received by the National Personnel Records Center in St. Louis, Missouri from the Texas Department of Corrections requesting a copy of the applicant’s report of separation (DD Form 214), for the purpose of putting the applicant into a job placement program for inmates. The applicant had the same prisoner number as he currently reflects on his application to the Board.

There is no indication in the available records which shows that he 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 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 admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they 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 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 and supporting documents have been noted by the Board and appear to be without merit. After being afforded the opportunity to assert his innocence before a trial by court-martial, he instead, voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge. In doing so he admitted guilt to the charges against him. 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 absence and his otherwise undistinguished record of service.

4. 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.

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

__kan___ __reb ___ ___rjw __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059779
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/10/25
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1980/09/12
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.