MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 March 2003
         DOCKET NUMBER: AR2002078874

         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
Mr. Melvin H. Meyer		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: In effect, that his discharge under other than honorable conditions be upgraded.

APPLICANT STATES: In effect, that at the time of his court-martial, he was not advised of his rights nor was he represented by counsel, which denied him due process.

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

He enlisted in Nashville, Tennessee, on 17 July 1979, for a period of 3 years, assignment to Fort Hood, Texas and training as an ammunition specialist. He completed his basic combat training at Fort McClellan, Alabama and was transferred to Redstone Arsenal, Alabama, for his advanced individual training (AIT). He successfully completed his AIT and was transferred to Fort Hood on 4 January 1980, for duty as an ammunitions storage specialist.

On 29 April 1980, he was convicted by a summary court-martial of being absent without leave (AWOL) from 8 April to 17 April 1980 and 18 April to 28 April 1980. He was sentenced to a reduction to the pay grade of E-2, a forfeiture of pay and restriction for 60 days.

The applicant again went AWOL on 22 July 1980 and remained absent until he was apprehended by civil authorities in Scottsboro, Alabama, on 8 October 1980. He was returned to military control at Fort Knox, Kentucky, and charges were preferred against him for the AWOL offense.

On 30 October 1980, 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 and had been advised of his rights. 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 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 also elected to submit a statement in his own behalf in which he explained that he joined the Army because he could not find work after graduating from school; however, he found his job to be a nasty and hard job. He further stated that he did not like confinement and desired to either receive a Chapter 10 discharge or be given a reduction in rank, forfeiture of pay and restriction, rather than any sentence involving confinement because it messed with his head.

The appropriate authority (a major general) approved his request on 18 November 1980 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions while on excess leave, on 23 January 1981, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 3 months and 3 days of total active service and had 96 days of lost time due to AWOL.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge in November 1981 contending that his discharge should be upgraded so that he could either get a job or draw unemployment benefits in order to assist his mother in paying her bills. The ADRB denied his request on 29 April 1982.

At the time of the applicant's application to this Board, he was incarcerated in the Limestone Correctional Facility in Capshaw, Alabama.

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 courtmartial, 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 length of his absence as well as his otherwise undistinguished record of service during such a short period of time.

4. 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.

5. 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

__jm____ ___js____ __mm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078874
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/03/25
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1981/01/23
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.