MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 June 2000                   
	DOCKET NUMBER:   AR2000036090

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. John H. Kern		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 his discharge under conditions other than honorable (UOTHC) be upgraded to honorable. 

APPLICANT STATES:  That he needed to be with his spouse as the income from the Army was too low to provide housing for her.  He had to work to pay for family housing.  He had always had a weight problem.  When arrived in Germany things got worse because of his weight.  He knew it was wrong to leave the way he did.  He believed it would be just for him to receive an honorable discharge. He provided his DD form 214, Certificate of Release or Discharge from Active Duty as evidence.  (The applicant died one month after the DD Form 149 was dated).

COUNSEL CONTENDS:  That the applicant truly regretted the error he made which cost him the honor he had wanted so dearly.  One of his last wishes was to have his discharge upgraded to honorable.

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

He enlisted in the Regular Army on 30 October 1979 for 4 years.  He completed basic training and advanced individual training and was awarded military occupational specialty 19D (Cavalry Scout).

On 25 July 1980, the applicant received a physical examination and it was determined that his overweight condition was not due to medical reasons.  There is no evidence of record to show he was ever flagged for being overweight.

On or about 27 October 1980, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for sleeping on guard duty.  The Article 15 is not available.

The applicant arrived in Germany on 18 August 1982.  A letter dated 21 January 1982 (presumably the date was meant to be 21 January 1983) from the applicant’s spouse’s pastor noted that she and their two children lived in a small house with relatives.  It was causing her a great strain due to cramped quarters as well as divergent views on life.  The pastor hoped it would be possible for the applicant to be stationed in California.

On 25 January 1983, the applicant departed absent without leave (AWOL).  He was apprehended by civil authorities for AWOL on 17 August 1984.  

On 27 August 1984, court-martial charges were preferred against the applicant charging him with AWOL for the period 25 January 1983 to 17 August 1984. 

On 27 August 1984, 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 21 September 1984, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

On 9 October 1984, 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 3 years, 4 months and 13 days of creditable active service and had 572 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.

On 27 January 1989, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.

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 this 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.  There is no evidence of record to show that the applicant attempted to request a compassionate reassignment or a hardship discharge and in fact went AWOL only 4 days after his spouse’s pastor wrote a letter in support of his receiving a compassionate reassignment.  The Board also notes that the applicant was AWOL for over 18 months and returned to military control only because he was apprehended by civil authorities.

4.  While the Board is empathetic with the applicant’s desire to upgrade his discharge and with his surviving spouse’s desire to see that his request be granted, those reasons are not sufficiently mitigating to warrant an upgrade of his discharge.

5.  The Board extends its sympathy to the applicant’s widow, but in view of the foregoing there is no basis for granting his 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

__eb____  __jhk___  __bje___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000036090	
SUFFIX		
RECON		
DATE BOARDED	20000613	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19841009	
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.