RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:               OCTOBER 14, 2004
      DOCKET NUMBER:       AR2004100351


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Linda Simmons                 |     |Member               |
|     |Mr. Richard Dunbar                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge under other than
honorable conditions be upgraded to an honorable or a general discharge.

2.  The applicant states, in effect, that he has prior service with the
Army National Guard and that he deserved and earned an honorable discharge
based on his completion of basic combat training (BCT) and advanced
individual training (AIT).

3.  The applicant provides in support of his application, a copy of his
Army National Guard Honorable Discharge Certificate; a copy of a
Certificate of Training showing that he successfully completed the Engineer
Equipment Repairer Course; a copy of a Certificate of Training show that he
successfully completed BCT; and a copy of a Certificate of Affiliation with
the United States Army Ordnance Corps.

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the New York Army National Guard (NYARNG) on 9 July
2000. He was honorably discharged from the NYARNG on 22 March 2001, for the
purpose of enlistment in the Regular Army (RA).

2.  On 23 March 2001, he enlisted in the RA for 3 years, in the pay grade
of E-3.  He successfully completed his training as a construction equipment
repairer.

3.  The applicant absented himself without leave (AWOL) on 17 April 2001
and he remained absent until he surrendered to military authorities on 13
August 2001.

4.  On 20 August 2001, the applicant was notified that charges were pending
against him for being AWOL.  He acknowledged receipt of the notification on
4 September 2001.  After consulting with counsel, he waived his rights and
he submitted a request for discharge under the provisions of Army
Regulation
635-200, chapter 10, for the good of the service, in lieu of trial by court-
martial.  In his request for discharge, he indicated that, under no
circumstances, did he desire further rehabilitation, for he had no desire
to perform further military service.




5.  The appropriate authority approved the request for discharge on
6 February 2002.  Accordingly, on 20 February 2002, the applicant was
discharged under other than honorable conditions, under the provisions of
Army Regulation
635-200, chapter 10, for the good of the service, in lieu of trial by court-
martial.  He had completed 7 months and 3 days of total active service
during this period of service and he had approximately 115 days of lost
time due to AWOL.

6.  On 28 August 2002, the Army Discharge Review Board denied the
applicant’s request of an upgrade of his discharge.

7.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that 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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  His request for a chapter 10 discharge, even after appropriate and
proper consultation with a military lawyer, tends to show he wished to
avoid trial by court-martial and the punitive discharge that he might have
received.

4.  The applicant’s prior service in the NYARNG has been noted.  However,
his prior service is not sufficiently mitigating to warrant the relief
requested.  He was AWOL for 115 days and when he submitted his request for
discharge, he indicated that he had no desire to perform further military
service.  The character of the discharge is commensurate with his overall
record of military service.


5.  In order to justify correction of a military record the applicant must
show 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

fe______  rd  ______  ls   _____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            __   __Fred Eichorn_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100351                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041014                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |20020220                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10/FOR THE GOOD OF SERVICE      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  689  |144.7000.0000/REQ FOR DISCHARGE         |
|2.  708                 |144.7100.0000/CONDUCT TRIABLE BY CM     |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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