MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 30 September 2003
                  DOCKET NUMBER: AR2003090702

         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. Raymond J. Wagner		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Margaret V. Thompson		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 honorable.

APPLICANT STATES: In effect, that he waited until everything from the Vietnam War to settle down and he believes it has been long enough and that his discharge should be upgraded.

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

He enlisted in Fairmont, West Virginia, on 21 December 1970, for a period of 2 years. He completed his basic combat training at Fort Knox, Kentucky, and was transferred to Fort Gordon, Georgia, to undergo his advanced individual training (AIT). He successfully completed his AIT and was transferred to Fort Lee, Virginia, for duty as a lineman.

He was advanced to the pay grade of E-4 on 1 February 1972 and on 30 June 1972, he reenlisted for a period of 6 years. He remained at Fort Lee until he was transferred to Germany on 21 January 1973. He completed his tour in Germany on 13 January 1975 and was transferred to MacDill Air Force Base, Florida.

On 27 February 1976, his commander initiated a recommendation to bar the applicant from reenlistment due to his continued failure to meet his financial commitments. He indicated that the applicant had written numerous checks with insufficient funds, that he had been counseled numerous times and that the debts still remained outstanding. The applicant declined the opportunity to submit matters in his own behalf and the appropriate authority approved the bar to reenlistment on 12 March 1976.

On 2 June 1976, the applicant went absent without leave (AWOL) and remained absent until he was apprehended by Federal Bureau of Investigation officials in Fairmont, West Virginia, on 26 October 1976, where he was working as a cab driver.

He was returned to military control at Fort Dix, New Jersey, where charges were preferred against him for the AWOL offense. He informed officials at the time of his return that he really did not have a reason for going AWOL; however, he had gotten tired of the routine and it had been building for a long time.

On 9 November 1976, 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 not to submit a statement in his own behalf to be considered by the discharge authority.

The appropriate authority (a major general) approved the request for discharge on 12 November 1976 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 24 November 1976, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 5 years, 6 months and 10 days of total active service and had 146 days of lost time due to AWOL.

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 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, especially given his lack of a reasonable explanation 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

___mm__ __mvt ___ __rjw ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003090702
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/09/30
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1976/11/24
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.