MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  16 February 2000
	DOCKET NUMBER:   AR199026760

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Curtis L. Greenway		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:  In effect, that his military records be corrected by upgrading his discharge under other than honorable conditions to an honorable discharge under hardship conditions.

APPLICANT STATES:  In effect, in a detailed personal statement, that he was repeatedly denied emergency leave by his chain of command because all of his available leave had been previously used; and that, as a last resort, he purchased a vehicle and went home on his own to assist his father recover from a fire that destroyed the family home in Kentucky.  He further stated that he was treated unfairly by military authorities; that he didn’t do anything that anyone else wouldn't do under similar circumstances; and that his AWOL was the only blemish in his military record.

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

He enlisted in the Regular Army for a period of 3 years.  After successfully completing his initial training, he was assigned to duties as a field artillery crewman in military occupation specialty (MOS) 13B in Korea on 17 December 1975.  After departing Korea on 8 January 1977, he was assigned to MOS 13B duties at Fort Riley, Kansas on 25 February 1977.

His DA Form 2-1, Personnel Qualification Record, indicated that he went AWOL on 12 April 1977 and on 12 May 1977, he was dropped from the rolls as a deserter.  On 20 July 1977, he was apprehended by civilian authorities and returned to military control at Fort Knox, Kentucky.

On 5 August 1977, his unit commander recommended approval of the applicant’s undated request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, Chapter 10.  In his request for discharge, the applicant stated that he made the request of his own free will and was not subjected to any coercion; that he was guilty of the charge against him; that he was afforded the opportunity to consult with a military lawyer; and that he was made aware of the implication of such a discharge including deprivation of many or all Army benefits, ineligibility of VA benefits, and deprivation of benefits as a veteran under both federal and state laws.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life as a result of receiving a discharge under other than honorable conditions.  Contained with the record of separation proceedings was a hand written statement, signed by him, that summarized the circumstances of a fire that destroyed his father’s house after he returned to Korea from home leave there on 31 October 1976.  In this statement, he reitered that he believed he needed to be at home with his father in order to help him rebuild the house and restore the family farm.

There was nothing in his records to indicate that he applied for an emergency leave or that such request was denied.  Also, except for his personal statement in the record of separation proceedings, there was nothing elsewhere in his records to indicate the existence a family hardship or that he requested a hardship discharge.

On 12 August 1977, the separation authority, a major general, approved his request for separation and directed the issuance of a discharge under other than honorable conditions.

His DD Form 214, separation document, indicated that he was separated on 30 August 1977 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 1 year, 8 months and 9 days of creditable service with 98 days of lost time.

AR 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.

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

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 concludes that the applicant’s allegation of unfair treatment by military authorities by refusing to grant his request for emergency leave in order to attend to a family crisis is not supported by the evidence of record or evidence submitted by him.

2.  The Board further concludes that if he had submitted sufficient proof of the existence of a bonafide hardship to his chain of command and met all of the applicable requirements, then he could have been granted a hardship discharge since procedures for such action were in effect at the time. 

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 the court-martial and the punitive discharge that he might have received.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate at the time considering all the facts of the case. 

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

_AO__  ___MW__  ___CG__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026760	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000216	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19770830	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	IN LIEU OF TRIAL BY COURT-MARTIAL	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.