MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 September 2002
         DOCKET NUMBER: AR2002073329

         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. Arthur A. Omartian		Chairperson
Mr. Kenneth W. Lapin		Member
Mr. Donald P. Hupman, Jr.		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: In effect, that his undesirable discharge was unjust, was based on false and incomplete information, and was not properly processed. He goes on to state that at the time his entire record of good service was not taken into account and his records were not reviewed because they would have seen that he had advanced rapidly in rank and that he served overseas. His discharge proceedings also do not account for the fact that he turned himself into authorities at Fort Polk, Louisiana, on several occasions. He further states that he simply wanted out of the Army and since it was for the betterment of the Army, he should have received a general discharge. In support of his application he submits a copy of his discharge proceedings and his report of separation (DD Form 214).

EVIDENCE OF RECORD: The applicant's military records are temporary records prepared at the time of his separation. They are somewhat incomplete; however, the available reconstructed records show:

He enlisted in Longview, Texas, on 13 April 1970, for a period of 3 years.

On 5 October 1970, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 14 September to 1 October 1970. His punishment consisted of a forfeiture of pay, extra duty and restriction.

Although the records do not specify exactly when he departed Fort Jackson, South Carolina, he was transferred to Germany. On 16 October 1971, he went AWOL and remained absent in desertion until he was apprehended by Federal Bureau of Investigation (FBI) officials in Longview, Texas, on 9 July 1976. He was returned to military control at Fort Sill, Oklahoma, and charges were preferred against him for being AWOL from 16 October 1971 to 9 July 1976. Temporary records were also constructed at Fort Sill.

On 16 July 1976, 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 further elected not to submit a statement in his own behalf.

Meanwhile, the applicant underwent a medical and physical examination and was cleared for separation. He also underwent a mental status evaluation and was deemed mentally responsible.
On 20 July 1976, the applicant requested to be placed in excess leave status pending the outcome of his request for discharge. His request was approved and he departed Fort Sill on the same day.

The appropriate authority approved his request on 28 July 1976 and directed that he be furnished with an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 4 August 1976, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had at least 1732 days of lost time due to AWOL and was separated on temporary records.

He applied to the Army Discharge Review Board (ADRB) on 23 August 1986 for an upgrade of his discharge. He contended that with the exception of his periods of AWOL, he had a good record. The ADRB, after reviewing the positive aspects of his service, determined that it did not outweigh his lengthy period of absence. The ADRB voted unanimously to deny his request on 11 May 1987.

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.

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 number and length of his absences as well as his otherwise undistinguished record of service during such a short period of time.

4. The Board has noted the applicant’s contentions. However, they are not supported by the evidence submitted with his application or the evidence of record and the Board finds that his overall record of service is not sufficiently mitigating to warrant relief.

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

___kwl __ __dh____ __ao____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073329
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/24
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1976/08/04
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.