MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 2 October 2003
                  DOCKET NUMBER: AR2003088571

         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:

Ms. Kathleen A. Newman		Chairperson
Mr. Lester Echols		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 undesirable discharge be upgraded to a more favorable discharge.

APPLICANT STATES: That he is sorry for the mistakes he made in his younger days in the military. He further states that he knows that he made some big mistakes in his life, his marriage and in the military. He also states that he was young, had just gotten married, did not have a father to advise him because he died when he (the applicant) was 15 years of age, and he had no one to advise him about "men things." He goes on to state that he has asked God for forgiveness and he now asks the Board to forgive him.

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

He was 20 years and 10 months of age and single when he enlisted in Little Rock, Arkansas, on 19 January 1973, for a period of 3 years and training as a food service specialist. He completed his basic combat training at Fort Jackson, South Carolina and his advanced individual training (AIT) at Fort Knox, Kentucky. Upon completion of his AIT he was transferred to Fort Hood, Texas, where he was advanced to the pay grade of E-3 on 22 August 1973.

Although his records are somewhat incomplete, it appears that he received orders transferring him to Germany, with a report date to the 21^st Replacement Detachment on 14 April 1974. He failed to report as ordered and was reported as being absent without leave (AWOL). He remained absent until 12 June 1974, when he surrendered to military authorities.

He again went AWOL on 1 July 1974 and remained absent until he was apprehended by civil authorities at Benton Harbor, Michigan, on 16 September 1974. He was returned to military control at Fort Leonard Wood, Missouri, where charges were preferred against him for the two AWOL offenses.

On 24 September 1974, 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 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 whereas he asserted that he could not adjust to military standards, that his wife wanted him out of the Army so he could be with her, and that he would accept any type of discharge he could get. He also stated that he would continue to go AWOL because he loved his wife more than the Army.

The appropriate authority (a major general) approved the request for discharge on 9 October 1974 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 11 October 1974, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 4 months and 11 days of total active service and had 135 days of lost time due to AWOL.

On 31 December 1974, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. He contended at that time that he had enlisted for assignment to Fort Leonard Wood, Missouri, and had instead been assigned to Fort Hood. All attempts to be reassigned to Fort Leonard Wood were rejected. The ADRB noted that he had no enlistment commitment for Fort Leonard Wood; however, his assignment areas of preference on his Enlisted Qualification Record (DA Form 20) indicate his preferences for assignments to be Fort Leonard Wood and Europe. The ADRB determined that his discharge was both proper and equitable and denied his request on 28 July 1975.

On 23 July 1982, he again applied to the ADRB for an upgrade of his discharge contending that he did not know it would be so hard to make it with an undesirable discharge and now that he had a family, he needed help in the form of a discharge upgrade. The ADRB again determined that his discharge was proper and equitable and denied his request on 23 November 1982.

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 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. 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. The Board has noted the applicant’s contentions and finds that they are not sufficiently mitigating to warrant relief under the circumstances.

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 ____ __kan___ __le ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003088571
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/10/02
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1974/10/11
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.