MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 July 2002
         DOCKET NUMBER: AR2002071837

         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:

Ms. Joann H. Langston		Chairperson
Mr. Thomas B. Redfern, III		Member
Mr. Roger W. Able		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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES: That he voluntarily enlisted in the United States Army Reserve (USAR) because it was the right thing to do. After spending 4½ years in the USAR, he found it difficult to attend drills, so he requested to be called to active duty. He goes on to state that he thought he would be working in his military occupational specialty (MOS) of an electrician; however, he never worked in his MOS and became very unhappy. He requested to be transferred to no avail and eventually decided to go home. He was picked up and sent to Fort Knox, Kentucky, where he was offered a choice between transfer and discharge. He further states that he does not believe that he was properly counseled as to the adverse effect the discharge would have on him nor was he properly defended in the proceedings. He continues by stating that he has been a productive citizen both before and after the Army and was not then or now in any trouble of any kind. In support of his application, he submits a character reference from a law enforcement official of a sheriff’s office.

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

He enlisted in the USAR on 23 August 1973 for a period of 6 years. He was assigned to a USAR Troop Program Unit (Construction Engineer Company) in Decatur, Alabama. He was ordered to active duty for training (ADT) on 29 January 1974. He completed his basic combat training and advanced individual training as an electrician at Fort Leonard Wood, Missouri. He was honorably released from ADT on 31 May 1974 and was returned to his USAR unit.

In April 1977, the applicant stopped going to his drills. He missed 7 months of drills with his unit. On 15 October 1977, he transferred to a USAR Postal Unit in Muscle Shoals, Alabama, for duty as a postal clerk. He did not attend drills with that unit in November 1977. The commander counseled him on the consequences of not attending drills and informed him that he would disregard the drills missed with his previous unit and allow him a fresh start with his new unit. In February 1978, the applicant began the same pattern of missing drills. He eventually refused to sign for his notices of unexcused absences sent by the commander through Certified Mail.

On 24 April 1978, the commander submitted a request to order the applicant to active duty for unsatisfactory participation. The request was approved and on 26 May 1978, orders were published ordering him to active duty involuntarily, at Fort Jackson, South Carolina, on 13 July 1978, for an ultimate assignment to an engineer battalion at Fort Benning, Georgia. The applicant reported as ordered and was assigned to Fort Benning on 26 July 1978, for duty as an electrician.

On 16 November 1978, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 6 November to 7 November 1978. His punishment consisted of extra duty and restriction.

On 27 November 1978, he went AWOL and remained absent until he was apprehended by civil authorities in Sheffield, Alabama, on 23 January 1979. He was returned to military control at Fort Knox, where charges were preferred against him on 7 February 1979.

On 12 February 1979, 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 acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions and further indicated that he did not desire further rehabilitation or to perform further military service. He indicated that he understood that he might be deprived of many or all benefits and rights as a veteran under Federal and State laws. He further elected to submit a statement in his own behalf, whereas he asserted that he had joined the Army to get an education and gain membership in the Electrician’s Union. However, when he arrived in AIT, he was informed that the electrician’s course was not recognized by the Union. He went on to state that he was needed at home to help his mother financially.

The appropriate authority approved his request for discharge on 9 March 1979 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 29 March 1979, under the provision of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 5 months and 24 days of active service during that period of service and had 54 days of lost time due to AWOL. He had served a total of 11 months of total active service and 4 years, 5 months and 2 days of inactive service.

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.

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 are not now nor have there ever 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. 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 charges against him, the length of his absences and his otherwise undistinguished record of service during such a short period of time.

4. The Board has noted the applicant’s contentions and supporting documents and finds that they are not sufficiently mitigating to warrant relief, when compared to his undistinguished 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

__jhl ____ ___tbr __ __rwa___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071837
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/07/09
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1979/03/29
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.