MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 April 2003
         DOCKET NUMBER: AR2002080025

         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. Thomas Lanyi		Member
Mr. Bernard P. Ingold		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 at least a general discharge.

APPLICANT STATES: That he did not receive due process, that he was not advised of his legal rights, that his ability to serve was impaired by his deprived background, that his offenses were only minor, and that he would not receive the same kind of discharge under current standards.

EVIDENCE OF RECORD: The applicant's military records, though somewhat incomplete, show:

He was inducted in Oakland, California, with a moral waiver on 21 September 1966, at the age of 21. It appears that he completed his training and was transferred to Fort Irwin, California, for duty as a mechanical maintenance helper.

Nonjudicial punishment (NJP) was imposed against him on 17 February 1967 for failure to go to his place of duty. His punishment consisted of extra duty and restriction.

On 27 October 1967, he was convicted by a special court-martial of being absent without leave (AWOL) from 6 March to 4 April and 21 April to 22 August 1967. He plead guilty to the charges and was sentenced to confinement at hard labor for 4 months and a forfeiture of pay. The convening authority approved the sentence but suspended the portion of the sentence pertaining to confinement for a period of 4 months.

On 26 January 1968, NJP was imposed against him for being AWOL from 22 January to 25 January 1968. His punishment consisted of a forfeiture of pay.

On 29 January 1968, the special court-martial convening authority vacated the suspended portion of his sentence to confinement at hard labor for 4 months and directed his confinement.

Although the specifics are not present in the available records, his records show that NJP was imposed against him on 6 March 1968 for misconduct. His punishment consisted of a forfeiture of pay.

He was released from confinement on 18 March 1968 and again went AWOL on 6 April 1968. He remained absent until he was returned to military control on 2 February 1969.

He was convicted by a special court-martial on 13 February 1969, of being AWOL from 6 April 1968 to 2 February 1969. He was sentenced to confinement at hard labor for a period of 6 months and a forfeiture of pay.

He again departed AWOL on 23 July 1969 and remained absent until he was apprehended by civil authorities on 24 April 1970 and was returned to military control, where charges were preferred against him for the AWOL offense.

On 6 May 1970, 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 and that once submitted, his request could not be withdrawn without the consent of the officer exercising general court-martial jurisdiction. He further elected to submit a statement in his own behalf whereas he asserted that he did not want to play Army anymore, that he did not like the Army and that he would continue to go AWOL until he got a discharge.

The appropriate authority (a major general) approved his request on 18 June 1970 and directed that he be issued an Undesirable Discharge Certificate.

However, the applicant again departed AWOL on 10 June 1970 and remained absent until he was returned to military control on 6 December 1970.

On 12 January 1971, he was discharged under other than honorable conditions 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 29 days of total active service and had 863 days of lost time due to AWOL and confinement.

There is no indication 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 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 and his undistinguished record of service.

4. The applicant’s contentions have been considered by the Board and appear to be without merit. The evidence of record clearly shows that he was advised of his rights, that he consulted with counsel and he acknowledged with his signature that he understood his rights and the implications attached to his request, as well as the type of his discharge he would receive.

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

___js____ __bpi ___ ___tl____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002080025
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/04/29
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1971/01/12
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.700/A70.00
2.
3.
4.
5.
6.