MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 August 2001
         DOCKET NUMBER: AR2001060184

         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. John H. Kern		Chairperson
Mr. Thomas Lanyi		Member
Ms. Paula Mokulis		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: That he was young at the time he entered the Army and is being held responsible for decisions that he made at the age of 17.

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

He enlisted with parental consent at the age of 17 on 9 January 1970 in Augusta, Georgia for a period of 3 years and training in the administration career management field. He entered the Army at Fort Jackson, South Carolina and remained there to undergo his training.

On 8 April 1970, while undergoing his advanced individual training, nonjudicial punishment was imposed against him for disobeying a lawful order from a noncommissioned officer (NCO). His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 9 April 1970 nonjuducial punishment was imposed against him for being absent without leave (AWOL) from 1 April to 8 April 1970. His punishment consisted of a forfeiture of pay, extra duty and restriction.

He again went AWOL from 1 May to 20 July 1970 and from 11 August to 18 October 1970, when he was returned to military control and charges were preferred against him.

The applicant underwent a psychiatric evaluation and was determined to be mentally responsible and able to distinguish right from wrong and to adhere to the right. He was cleared for any administrative or judicial action deemed appropriate by the commander.

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records. However, his records do contain a duly constituted report of separation (DD Form 214) which shows that on 24 November 1970 he was discharged under other than honorable conditions 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 5 months and 24 days of total active service and had 143 days of lost time due to AWOL.

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 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 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 provisions for an automatic 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 must be presumed 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 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 have been noted by the Board; however, they are not sufficiently mitigating when compared to his extensive absences and his otherwise undistinguished record of service during a relatively short period.

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

___pm __ __jhk____ __tl ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060184
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/08/23
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1970/11/24
DISCHARGE AUTHORITY	AR635-200/ch10
DISCHARGE REASON	A70.00/gd of svc
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/a70.00
2.
3.
4.
5.
6.