MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 August 2002
         DOCKET NUMBER: AR2002071810

         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. Luther L. Santiful		Chairperson
Ms. Paula Mokulis		Member
Mr. Donald P. Hupman		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 more favorable discharge.

APPLICANT STATES: That he was told that his discharge would be upgraded to honorable after a period of time.

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

He enlisted in Little Rock, Arkansas, on 29 October 1971, for a period of 3 years and training as an automotive repairman. He completed his basic combat training at Fort Polk, Louisiana, and was transferred to Aberdeen Proving Ground, Maryland on 15 January 1972, to undergo his advanced individual training (AIT).

On 25 February 1972, nonjudicial punishment (NJP) 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 AIT and received orders transferring him to Germany. He had a report date to Fort Dix, New Jersey, of 9 June 1972. The applicant failed to report as ordered and was reported as absent without leave. He remained absent until he was apprehended by civil authorities on 8 July 1972 and was returned to military control at Fort Sill, Oklahoma.

On 14 July 1972, NJP was imposed against him for the AWOL offense. His punishment consisted of a forfeiture of pay.

The applicant was again ordered to report to Fort Dix for movement to Germany and again went AWOL on 24 July 1972. He remained absent until he surrendered to civil authorities in Fort Smith, Arkansas, on 25 October 1972.

He was returned to military control at Fort Sill and charges were preferred against him. After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He acknowledged that he understood that he could receive an undesirable discharge and that he understood the consequences of his request. He also submitted a statement in his own behalf, whereas he asserted that he had been in the Army for thirteen months, that he had encountered problems adapting from day one and he did not believe that he would be a good soldier because he could not get used to being away from his loved ones.

His immediate commander recommended approval with an undesirable discharge. However, the commanding general disapproved his request on 1 December 1972.

On 12 December 1972, he was convicted by a special court-martial of being AWOL from 24 July to 25 October 1972. He was sentenced to confinement at hard labor for 4 months, reduction to the pay grade of E-1 and a forfeiture of pay.

He was transferred to the Army Retraining Brigade at Fort Riley, Kansas, to serve his confinement. After serving his confinement, the applicant was assigned to a unit at Fort Riley as permanent party.

On 9 April 1973, he again went AWOL and remained absent until 10 July 1973, when he surrendered to civil authorities in Fayetteville, Arkansas. He was returned to Fort Sill, where charges were preferred against him on 12 July 1973.

On 18 July 1973, after consulting with counsel, the applicant again submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He acknowledged that he understood that he could be issued an undesirable discharge and that he understood the implications attached to such a request. He indicated that he had not been coerced by anyone and elected to submit a statement in his own behalf. In his statement he indicated that he came from a family in the Ozark Mountains and that he had never been in jail or away from his parents until he joined the Army. He went on to state that his mother had died two years prior and his father was in poor health. He continued by stating that he had not been able to get used to being away from his family and that he did not believe that he would ever make a good soldier.

The commanding general approved his request on 3 August 1973 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 3 August 1973, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 10 months and 22 days of total active service and had 319 days of lost time due to AWOL and confinement.

There is no indication 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.

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 voluntary 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 and there have never 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. 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 length of his absences during a short period of time.

4. The applicant’s contentions have been considered by the Board. However, they are not supported by the evidence of record and the Board finds that they are not sufficiently mitigating to warrant relief when compared to his overall record of service.

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

___ls ___ __pm___ __dh____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071810
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/06
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1973/08/03
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD IF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00
2.
3.
4.
5.
6.