MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 August 2002
         DOCKET NUMBER: AR2002072028

         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. John N. Slone		Chairperson
Ms. Irene N. Wheelwright		Member
Mr. Jose A. Martinez		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: In effect, that his undesirable discharge be upgraded to a more favorable discharge.

APPLICANT STATES: In effect, that he was young and stupid at the time and he regrets his actions. He goes on to state that his father died while he was stationed in Germany and the Army failed to ship him home in time for the funeral. He further states that he waited for a flight in Frankfurt, Germany for 12 hours before he finally got out and that is when his trouble with the Army started.

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

He enlisted in Oklahoma City, Oklahoma, on 26 June 1968 for a period of 3 years and training as a supply clerk. At the time of his enlistment his father gave parental consent and the applicant indicated that his mother was deceased.

He successfully completed his training and was transferred to Germany on 20 November 1968. He was advanced to the pay grade of E-3 on 19 February 1969.

The applicant’s records show that he departed Germany on emergency leave on or about 22 March 1969 and was attached to Fort Sill, Oklahoma, on 28 April 1969, pending an application for a compassionate reassignment. His request was approved and he was reassigned to Fort Sill with a stabilization of assignment until 20 September 1969.

Although the specifics are not contained in the available records, his records show that nonjudicial punishment (NJP) was imposed against him on 9 July 1969 for misconduct and his punishment consisted of a forfeiture of pay.

The applicant went absent without leave (AWOL) from 16 January through 20 January 1970 and NJP was imposed against him on 22 January 1970. His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 27 January 1970, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of a forfeiture of pay and restriction.

The applicant again went AWOL from 5 February through 25 February 1970 and NJP was again imposed against him on 9 March 1970. His punishment consisted of a reduction to the pay grade of E-2.

The applicant completed a new Record of Emergency Data (DA Form 41) on 28 February 1970 and updated his personnel records. He indicated that his father was deceased and that he was married.

He again went AWOL on 9 June 1970 and remained absent until he was apprehended in Great Falls, Montana, on 8 January 1971 and was returned to military control at Fort Lewis, Washington, where charges were preferred against him.

The facts and circumstances surrounding the applicant’s discharge are not present in the available records. However, his records do contain a duly constituted report of separation (DD Form 214) signed by the applicant, which shows that he was discharged under other than honorable conditions at Fort Lewis on 26 February 1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 6 months and 29 days of total active service and had 272 days of lost time due to AWOL.

There is no evidence in the available records to show that he ever applied to the ADRB for an upgrade of his discharge.

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.

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. In the absence of evidence to the contrary, it must be presumed that 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 sufficiently mitigating to warrant relief when compared to his overall record of undistinguished 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

__inw ___ __js_____ ___jm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072028
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/15
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1971/02/26
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.