MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 December 1999                   
	DOCKET NUMBER:   AR1999028062

	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. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms. Barbara J. Ellis		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 the reason for his discharge be changed to “convenience of the government” and his separation code be changed accordingly and his reentry code be changed to 1.

APPLICANT STATES:  That his efficiency ratings and behavior were good.  His record of civil convictions and being absent without leave (AWOL) indicates minor offenses; his ability to serve was impaired by his youth and immaturity and his family problems; he suffered racial discrimination that impaired his ability to serve; and he should have gotten a medical discharge because he was not medically qualified to serve due to a severe nervous problem.  He provides no supporting evidence.

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

He was born on 31 August 1959.  He enlisted in the Regular Army on 6 July 1977.  He completed basic training and advanced individual training and was awarded military occupational specialty 94B (Cook). 

Between 24 August 1977 and 4 April 1979, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice on eight occasions for wrongfully possessing marijuana; failing to go to his appointed place of duty; failing to go to his appointed place of duty; disobeying a lawful command; wrongfully possessing marijuana; failing to go to his appointed place of duty; wrongfully using provoking words; and being AWOL and disobeying a lawful order, respectively.

The applicant departed AWOL on 25 April 1979.  On 28 August 1980, he was arrested by civil authorities for “unlawful weapon.”  He was returned to military control on 18 September 1980.

On 7 October 1980, court-martial charges were preferred against the applicant charging him with AWOL for the period 25 April 1979 – 28 August 1980. 

On 7 October 1980, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, Chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement in his own behalf.

On 5 November 1980, the appropriate authority approved the request and directed the applicant be issued a discharge under other than honorable conditions (UOTHC).

On 19 November 1980, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, discharge in lieu of trial by court-martial.  He had completed 1 year, 11 months and 2 days of creditable active service and had 491 days of lost time. 

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.  A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty. 

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.  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.

2.  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. There is no indication that the request was made under coercion or duress.  The reason for discharge, separation code and the reentry code given were and still are appropriate.

3.  The Army did not consider any civil offenses when approving his request for discharge.  He had been charged only with being AWOL for a period of 491 days, which is not a minor offense.

4.  The Board notes the applicant was almost 18 years old when he enlisted and was 19 years old when he departed AWOL.  This factor does not warrant the relief requested.  Thousands of 18-year olds honorably complete their term of service every year.
5.  There is no record of evidence to show the applicant was a victim of racial discrimination and he has provided none.  He had an opportunity to submit a statement with his request for discharge and could have brought up any discrimination or family problem issues at that time as matters of extenuation/mitigation but he failed to do so.

6.  There is no evidence of record to show the applicant was physically unfit at any time during his service.  He has stated that his efficiency ratings were good, implying that he was capable of performing his military duties.

7.  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

__svw____  _vbc_____  __bje____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999028062	
SUFFIX		
RECON		
DATE BOARDED	19991202	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19801119	
DISCHARGE AUTHORITY	AR 635-200, Ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.