MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 February 2002
         DOCKET NUMBER: AR2001064363

         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
Ms. Celia L. Adolphi		Member
Mr. John T. Meixell		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 an honorable discharge.

APPLICANT STATES: In effect, that his discharge was the result of his ability to serve being impaired by his youth and immaturity, and too much pressure to make the wrong decisions while not realizing the severity of those decisions. He further states that clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge. He also states that he has been a good citizen since his discharge, that his ability to serve was also impaired by personal and family problems; however, he has since matured and has become a responsible adult who has regretted his actions and wishes that he could do it all over again.

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

He was born on 27 July 1956 and enlisted in Jacksonville, Florida, on 7 August 1974 for a period of 2 years. He was transferred to Fort Knox, Kentucky, to undergo his basic combat training (BCT).

On 4 September 1974, nonjudicial punishment was imposed against him for failure to go to his place of duty. His punishment consisted of a forfeiture of pay and extra duty.

He completed his BCT and was transferred to Fort Lee, Virginia, on 4 October 1974, to undergo advanced individual training (AIT) as a cook.

On 30 October 1974, he went absent without leave (AWOL) and remained absent until he was apprehended by civil authorities in Lake County, Florida, and was returned to military control at Fort Gordon, Georgia, on 5 February 1975, where charges were preferred against him.

On 14 February 1975, 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 to submit a statement in his own behalf whereas he asserted that he did not like the Army, that he didn’t want to be a good soldier, that he did not care if he received an undesirable discharge and that he wanted out of the Army.

The appropriate authority (a major general) approved his request on 11 March 1975, and directed that he be furnished an Undesirable Discharge Certificate.
Accordingly, he was discharged under other than honorable conditions on 24 March 1975, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 4 months, and 9 days of total active service and had 99 days of lost time due to AWOL.

There is no evidence in the available records to show 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.

Information contained in his records from the Florida Parole Commission indicates that on 18 July 1977, the applicant was convicted for the offense of manslaughter, in Lake County, Florida.

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. After being afforded the opportunity to assert his innocence before a trial by court-martial, 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. 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 number and length of his absences as well as his otherwise undistinguished record of service during such a short period of time.

4. The applicant’s contentions have been noted by the Board. However, they are not supported by any evidence submitted by the applicant with his application, or the evidence of record. Accordingly, the Board finds that his contentions are not sufficiently mitigating when compared to his otherwise undistinguished record of service over such a short period of time.

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

___jm___ ___rvo __ ____cla__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064363
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/02/28
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1975/03/24
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.