MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 March 2003
         DOCKET NUMBER: AR2002079459

         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)

---

APPLICANT REQUESTS: That his undesirable discharge be upgraded to a general discharge.

APPLICANT STATES: That his discharge was unjust because his pre-service civilian convictions were listed on his enlistment documents and were used in the discharge proceedings.

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

He enlisted in Providence, Rhode Island, on 29 August 1969 for a period of 3 years and training as a unit supply specialist. At the time of his enlistment he indicated that he had no previous law violations.

He completed his basic combat training at Fort Dix, New Jersey and his advanced individual training (AIT) at Fort Lee, Virginia. He was then transferred to Fort Hood, Texas, for duty as a supply clerk. He was advanced to the pay grade of E-3 on 20 October 1970.

On 29 June 1971, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 17 June to 23 June 1971. His punishment consisted of reduction to the pay grade of E-1, a forfeiture of pay and extra duty.

On 29 June 1971, he was also arrested by civil authorities for loitering and burglary of an automobile. He was placed on 2 years probation and was returned to military control on 28 July 1971.

Charges were preferred against the applicant for failure to properly secure a privately owned firearm in the unit arms room and for being AWOL from 23 August to 29 August 1971.

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 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 further declined to submit a statement in his own behalf.

Meanwhile, the applicant again went AWOL from 1 September to 7 September 1971 and on 10 September 1971, he was arrested by civil authorities for suspicion of forgery.

The appropriate authority (a brigadier general) approved his request for discharge on 9 September 1971 and directed that he be furnished with an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 12 October 1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 10 months and 23 days of total active service and had 86 days of lost time due to AWOL and confinement by civil authorities.

The applicant applied to the Army Discharge Review Board (ADRB) on 19 July 1979 contending that his discharge should be upgraded so that he could obtain better employment. The ADRB determined that he was properly and equitably discharged and that his service was properly characterized. The Board voted unanimously to deny his application.

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. 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 contention that his discharge should be upgraded because his civil conviction was used in the discharge proceedings has been considered by the Board and found to be without merit. Civil convictions are not precluded from use in discharge proceedings and in some cases, soldiers are discharged as a result of civil convictions and normally receive a discharge under other than honorable conditions. In any event, his contention is 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

___jm___ __js_____ __mm___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002079459
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/03/25
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1971/10/12
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.