MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 June 2002
         DOCKET NUMBER: AR2002070662

         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. Roger W. Able		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.

APPLICANT STATES: That under current conditions, he would not have received an undesirable discharge for his offenses. He goes on to state that at the time, he was young and no one could tell him anything because he had all of the answers. He further states that at the time, he was one of the top three soldiers in his company and his conduct was good. He states that he has been a good citizen, raised four children, has been married for 25 years and has been active in his community. He continues by stating that he was raised in a fatherless family and his problem was one of immaturity. He also states that he has lost a great job because he lied on his job application about his discharge and desires to have it upgraded to a more favorable discharge. In support of his application he submits statements from two of his children, his wife, his former supervisor, a friend and a homeless shelter case manager where the applicant is a resident.

COUNSEL CONTENDS: That the applicant’s discharge should be upgraded based on his post-service conduct.

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

He was born on 17 March 1953 and enlisted in Jacksonville, Florida, on 2 November 1972, for a period of 3 years and assignment to the 82^nd Airborne Division at Fort Bragg, North Carolina. He was transferred to Fort Knox, Kentucky, to undergo his basic combat training (BCT).

He completed his BCT and was transferred to Fort Benning, Georgia, on 19 January 1973, to undergo airborne training.

On 15 February 1973, he went absent without leave (AWOL) and remained absent until he was returned to military control at Fort Bragg on 9 April 1973. He was returned to Fort Benning on 13 April 1973 and again went AWOL on 23 April 1973. He remained absent until 20 May 1973, when he was returned to military control at Fort Gordon, Georgia, and charges were preferred against him.

On 28 May 1973, 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 acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. He further elected to submit a statement in his own behalf whereas he contended that he could no longer adapt to Army life and that an undesirable discharge would be fine with him.
The appropriate authority (a major general) approved his request on 12 June 1973 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 26 June 1973, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 5 months and 4 days of total active service and had 81 days of lost time due to AWOL.

On 28 November 1974, he applied to the Army Discharge Review Board (ADRB) requesting that his discharge be upgraded so that he could further his education. After reviewing the available evidence, the ADRB determined that he had been properly discharged and voted unanimously to deny his application on 8 January 1975.

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 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 was at that time and is still 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. 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 and supporting documents have been considered by the Board. However, they are not sufficiently mitigating to warrant relief when compared to his undistinguished record of service during 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

___rwa__ ____jm__ ___rvo __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070662
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/06/20
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1973/06/26
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.