MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 23 September 2003
                  DOCKET NUMBER: AR2003089595

         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. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Patrick H. McGann		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: That when he joined the Army he was trained in military occupational specialty (MOS) 51A10 and was transferred to an armored division in Bamberg, Germany. There was no slot for his MOS in the company he was assigned to and he was given every detail such as kitchen police, charge of quarters or anything else that could be found. He goes on to state that he requested a transfer to Vietnam and his request was approved; however, when he arrived at Fort Lewis, Washington, he was diverted to another armored division at Fort Hood, Texas, to again be a gofer. He further states that he did not join the Army to be a coffee boy and feels that 30 years is enough for him to be penalized with such a discharge.

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

He enlisted in Angleton, Texas, on 4 January 1971, for a period of 3 years and training as a construction and utilities specialist (51A). He completed his basic combat training at Fort Polk, Louisiana, and his advanced individual training (AIT) at Fort Leonard Wood, Missouri. Upon completion of his AIT he was transferred to Germany on 22 May 1971, where he was assigned to Headquarters and Headquarters Detachment, 2^nd Battalion, 52^nd Infantry Regiment.

On 23 September 1971, nonjudicial punishment was imposed against him for being drunk and disorderly. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 30 days).

He remained in Bamberg, Germany until he received orders transferring him to Vietnam. He departed Germany on 21 October 1971, with orders transferring him to the Overseas Replacement Detachment at Fort Lewis, en route to Vietnam.

On 8 December 1971, orders were published at Fort Lewis diverting the applicant and four other soldiers to Fort Hood with a report date of 13 December 1971. The applicant reported to Fort Hood as ordered and was assigned to Company B, 27^th Maintenance Battalion, 1^st Cavalry Division, for duty as a construction and utilities specialist.

On 18 February 1972, he went absent without leave (AWOL) and remained absent until he was apprehended in Tyler, Texas by Federal Bureau of Investigation officials on 14 February 1973. He was returned to military control at Fort Hood, where charges were preferred against him for the AWOL offense.

On 26 February 1973, 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 elected not to submit a statement in his own behalf and stated that he did not desire a rehabilitative transfer.

The appropriate authority (a major general) approved his request on 19 March 1973 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 8 May 1973, 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 8 days of total active service and had 362 days of lost time due to AWOL and confinement.

At the time of his discharge he was provided an information sheet explaining to him the procedures for applying to the Army Discharge Review Board for an upgrade of his discharge. However, there is no indication that he ever made application to that board within it'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 during a short period of time.

4. The applicant’s contentions have been considered by the Board. However, they are not sufficiently mitigating to warrant relief when compared to his overall record of service and the lack of mitigating circumstances to explain his misconduct.

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

__jlp____ ___ao ___ _pm ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003089595
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/09/23
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1973/05/08
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.