MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 May 2002
         DOCKET NUMBER: AR2001066187

         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. Fred N. Eichorn		Chairperson
Mr. Roger W. Able		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 received an undesirable discharge because he refused to go to Alcoholics Anonymous (AA) and he did so because he did not know what AA was. Had he been properly counseled and informed what AA was, he would have gone. Up until that point his service was good and that should have been taken into consideration.

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

He enlisted at 20 years of age in Washington, D.C. on 6 October 1972, for a period of 2 years. At the time of his enlistment, he indicated on his enlistment documents that he had never been arrested, cited or charged by law enforcement officials. He also signed a statement indicating that if he intentionally misrepresented or concealed any information regarding arrests, convictions, or court adjudications, he would be subject to disciplinary action or a discharge under other than honorable conditions. He was transferred to Fort Dix, New Jersey, to undergo his basic combat training (BCT).

On 8 November 1972, nonjudicial punishment (NJP) was imposed against him for failure to obey a lawful order from his commander, which prohibited drinking beer in the barracks. His punishment consisted of a forfeiture of pay, extra duty and restriction.

The applicant went absent without leave (AWOL) from 19 November to 24 November 1972; however, the record is silent as to any punishment imposed.

On 6 December 1972, NJP was imposed against him for being drunk and disorderly in uniform in a public place and for breaking restriction. His punishment again consisted of a forfeiture of pay, extra duty and restriction.

He completed his BCT and was transferred to Fort Gordon, Georgia, to undergo advanced individual training (AIT) as a military policeman.

On 9 March 1973, NJP was imposed against him for being AWOL from 2 February to 10 February and 14 February to 5 March 1973. His punishment consisted of a forfeiture of pay and extra duty.

He again went AWOL on 31 March to 24 April and from 27 April to 8 May 1973, when he was returned to military control and charges were preferred against him. He was convicted by a special court-martial of the AWOL charges on 4 June 1973 and was sentenced to confinement at hard labor for 3 months and a forfeiture of pay.

He was transferred to the Army Retraining Brigade at Fort Riley, Kansas, to serve his confinement and then was transferred to Fort Lee, Virginia, on 24 August 1973, to undergo AIT as a stock control and accounting specialist.

On 7 September 1973, NJP was imposed against him for being derelict in the performance of his duties. His punishment consisted of extra duty for 14 days.

On 19 September 1973, NJP was imposed against him for being AWOL from 10 September to 17 September 1973. His punishment consisted of extra duty and restriction.

He again went AWOL on 28 September 1973, and remained absent until he was returned to military control at Fort Meade, Maryland, on 8 November 1973. On 16 November 1973, he again departed AWOL and remained absent until 6 January 1974. On 28 January 1974, he departed AWOL and remained absent until he was returned to military control at Fort Meade on 29 March 1974, and charges were preferred against him for his AWOL offenses.

Meanwhile, on 11 March 1974, the Enlisted Records and Evaluation Center (EREC) at Fort Benjamin Harrison, Indiana, requested that the Commander of Fort Lee investigate suspicions that the applicant was a fraudulent entry. The EREC provided a copy of a Federal Bureau of Investigation (FBI) Report, which indicates that the applicant was charged with multiple burglary charges, multiple gun charges and assault in Washington, D.C.

On 9 April 1974, 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.

The appropriate authority approved his request and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 29 April 1974, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 9 months and 23 days of total active service and had 271 days of lost time due to AWOL and confinement.

He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 31 May 1974, requesting an upgrade of his discharge to a general discharge. He contended at that time that at the time his common-law wife was having their fourth child and he had to resolve issues with his business associates; therefore, it was imperative that he go AWOL because all of his requests for leave were denied. The ADRB denied his request on 7 November 1974.

He again applied to the ADRB for an upgrade of his discharge on 19 December 1977. He contended at that time that while in the service, he was stricken with the illness known as alcoholism, which caused him to act as he did. The ADRB again denied his request on 5 January 1979.

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 and there never have been any 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. 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. However, the Board notes that 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. 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 seriousness of the offense, the extensive length of his absence and his otherwise undistinguished record of service at the time.
4. The applicant’s contention that he was discharged for his refusal to go to AA and that his otherwise good record of service was not taken into consideration, appears to be without merit. The applicant was properly discharged under other than honorable conditions based on his request for discharge, after he had been charged with multiple AWOL offenses that could have led to a bad conduct or dishonorable discharge. The evidence of records clearly shows the basis for his discharge and he has failed to show that such was not the case.

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

___fe ___ ___pm __ __ra ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001066187
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/05/16
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1974/04/29
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.