MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 March 2003
         DOCKET NUMBER: AR2002080026

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

APPLICANT STATES: In effect, that he was told that his discharge would automatically be upgraded 6 months after his discharge and being a kid, he did not know any different. He goes on to state that while attending his advanced individual training at Fort Sam Houston, Texas, he got into a fight with another soldier and was thrown in the stockade at Fort Hood, Texas, to await trial by court-martial. He was then transferred to the United States Army Retraining Brigade (USARB) at Fort Riley, Kansas, where he remained for 6 months. He goes on to state that his father had two heart attacks and he was denied leave to go on one of the occasions. His family problems at the time made it hard for him to focus; however, he finished his time at the USARB and was transferred to Fort Jackson, South Carolina, to attend training as a supply clerk, which he completed with honors. He continues by stating that he was transferred back to Fort Riley and was assigned to an infantry company and subsequently to a signal company. He also states that he was shot in the arm while hitchhiking back to post and was hospitalized. When he returned to his room he found stuff missing and began to think his life was in danger. Consequently, he asked his commander for a transfer and it was denied. He further states that he desires an upgrade of his discharge so that he can better provide for his family and be a part of his community. In support of his application he submits a copy of his report of discharge (DD Form 214) and a copy of his Enlisted Qualification Record (DA Form 20).

EVIDENCE OF RECORD: The applicant's military records were not available for review by the Board. However, the documents submitted by the applicant show:

He enlisted in Chicago, Illinois, on 30 September 1972 for a period of 2 years. He completed his basic combat training at Fort Polk, Louisiana, and was transferred to Fort Sam Houston, Texas, to undergo training as a medic. He was advanced to the pay grade of E-2 on 30 January 1973.

Although the specifics are not present in the available records, they show that he was placed in confinement at Fort Hood, Texas on 2 February 1972 and was transferred to the USARB on 3 April 1973. He was reduced to the pay grade of E-1 by reason of a special court-martial on 4 May 1973. On 2 July 1973, he was transferred to Fort Jackson to undergo his advanced individual training (AIT) as a supply clerk. He was advanced to the pay grade of E-2 on 1 August 1983. He completed his AIT and was transferred to Fort Riley on 21 September 1973.

His records show that he went absent without leave (AWOL) from 1 April thru 29 April 1974, from 1 July through 8 July 1974, 7 October through 9 October 1974, 11 October through 14 October 1974, 17 October through 3 December 1974 and 5 December 1974 through 3 February 1975.
The facts and circumstances surrounding the applicant’s discharge are not present in the available records. However, his duly constituted DD Form 214, signed by the applicant, shows that he was discharged at Fort Riley, Kansas, on 6 March 1975, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 7 months and 7 days of total active service and had 300 days of lost time due to AWOL and confinement.

There is no evidence 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 and there have never been any provisions for an automatic upgrade of such a discharge.

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 and supporting documents have been considered by the Board. However, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service. In addition, there never have been any provisions for an automatic upgrade of such a discharge within 6 months of discharge.

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

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INDEX

CASE ID	AR2002080026
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/03/25
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1975/03/06YYYYMMDD
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.