MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             8 July 1999                   
	DOCKET NUMBER:    AR1999013294

	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. Loren G. Harrell		Director	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar 		Chairperson	
	Mr. Raymond V. O’Connor		Member	
	Mr. Roger W. Able		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)

APPLICANT REQUESTS:  That his under other than honorable conditions (UOHC) discharge be upgraded to honorable.

APPLICANT STATES:  In effect, that the Army breached his enlistment contract and that mental, physical, verbal, and emotional abuse led to his AWOL, thus causing him to be discharged with a UOHC.  The applicant submitted a statement in his own behalf, a letter of reference from a counselor, 3 documents from the Inspector General’s (IG) office, and a letter from his mother.

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

On 12 February 1981 the applicant enlisted in the Regular Army for a period of 3 years.  He enlisted for the US Army Unit of Choice Enlistment Option - Europe.  He successfully completed one station unit training (OSUT) at Fort Sill, Oklahoma.  Upon completion of OSUT he was awarded the military occupational specialty (MOS) 13B (Cannon Crewmember) and was assigned to Germany.

On 14 April 1981 the applicant arrived in Germany.  It was discovered that the applicant was a German Alien and could not be assigned for duty in the Federal Republic due to the Status of Forces Agreement (SOFA).  The applicant was allowed to visit with his parents for a few days.  On 27 April 1981 the applicant was returned to CONUS.

On 30 April 1981 the applicant was assigned to Fort Polk, Louisiana.

On 22 May 1981 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for failure to go to his appointed place of duty.  His punishment consisted of a forfeiture of $116.00.  On 15 June 1981 the applicant accepted his second NJP for failure to go to his appointed place of duty.  His punishment consisted of a forfeiture of $116.00 and 7 days confinement.

On 5 July 1981 the applicant was promoted to private/E2.

On 16 July 1981 the applicant departed his unit in an AWOL status.  On 15 August 1981 the applicant was dropped from the rolls.  On 10 November 1981 the applicant surrendered to military authorities at Fort Ord, California.  On 11 November 1981 the applicant was charged with AWOL.  The applicant consulted legal counsel.  On 25 November 1981 the applicant requested discharge under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial, and declined to submit a statement in his own behalf.

On 2 December 1981 the applicant was placed on excess leave.

On 5 January 1982 the unit commander recommended approval of the chapter 10 request.  The intermediate and senior commanders recommended approval with a UOHC.

On 11 January 1982 the separation authority approved separation with a UOHC.  Accordingly, on 29 January 1982 the applicant was discharged after completing 7 months and 20 days of active military service and accruing 115 days of lost time.

There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statue of limitations.

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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is 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 Board noted the applicant’s contention that the government breached his contract by allowing him to choose an enlistment option that was not available to him.  Although there was a breach in the applicant’s contract, the evidence of record shows the applicant had two choices, he could have requested release from active duty or chose a new duty station.  There is no evidence of record indicating the applicant requested release from the US Army.

2.  The evidence of record does not support the applicant’s contention, in effect, that he was physically, verbally, mentally, and emotionally abused while awaiting assistance for his breach of contract, neither did he provide any independent corroborating evidence in support of his contention.  The Board concluded the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct that led to the separation action under review.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

4.  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 the aforementioned requirement.

5.  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

___jh___  ___rvo__  ___rwa___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998013294	
SUFFIX		
RECON		
DATE BOARDED	1999/07/08	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1982/01/29	
DISCHARGE AUTHORITY	AR 635-200, C10	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A2702	
2. 	A9323	
3.		
4.		
5.		
6.