MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 December 1999                   
	DOCKET NUMBER:   AR1999028525

	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:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James P. Huber		Member	
	Mr. Arthur A. Omartian		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 discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge under honorable conditions.

APPLICANT STATES:  That they should have let him go home to see about his child, who was in an incubator after his birth.  He provides no supporting evidence.

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

He enlisted in the Regular Army on 11 January 1977.  He completed basic training and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewman).

The applicant’s second son was born on 18 February 1978.  

On 20 March 1978, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 23 February – 8 March 1978.

On 17 May 1978, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order.

On 2 June 1978, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty.

On 18 October 1978, the applicant accepted NJP under Article 15, UCMJ for being absent without authority.  His punishment had been suspended pending receipt of valid documentation concerning a medical emergency of his son.  On 30 October 1978, the punishment was set aside.

On 1 December 1978, the applicant accepted NJP under Article 15, UCMJ for three counts of disobeying a lawful order.

The applicant departed AWOL 14 December 1978 and returned to military control 15 February 1979.  He was pending court-martial when he departed AWOL 2 March 1979.

On 14 March 1979, the applicant’s spouse was informed that the applicant’s “…absence could result in trial by court-marital…his dependents lose all rights …medical care…and other military benefits.”  On 28 March 1979, she was informed that he had been administratively classified as a deserter and that “…dependents of soldiers classified as deserters are not eligible for …medical care and other military privileges.”  The applicant was apprehended by civil authorities on 1 August 1979.
On 9 August 1979, the applicant completed a separation physical examination and was found qualified for separation.

On 14 August 1979, court-martial charges were preferred against the applicant charging him with AWOL for the periods 14 December 1978 – 15 February 1979 and 2 March – 1 August 1979.

On 14 August 1979, 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 30 August 1979, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

On 6 September 1979, 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 2 years and 6 days of creditable active service and had 335 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.

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.
3.  At this late date the Board will not second-guess any decision the applicant’s commander may have made not to grant leave.  The Board notes that his command was cognizant of his son’s medical problems and set aside one Article 15 punishment for that reason.  While the Board sympathizes with the applicant’s reason for wanting to see his son, the Board does note that his AWOL put his son’s right to military medical care in jeopardy.  In addition, the Board also notes that the most leave he would have received would have been 30 days.  His two periods of AWOL for this time totaled 215 days and ended only because he was apprehended by civil authorities.

4.  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

__rvo___  __jph___  __aao___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999028525	
SUFFIX		
RECON		
DATE BOARDED	19991208	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19790906	
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.