MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            2 March 2000                  
	DOCKET NUMBER:   AR2000036665

	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. W. E. Schnupp		                         Analyst	

  The following members, a quorum, were present:

	Mr. Edwin S. Castle		Chairperson	
	Mr. Stanley Kelley		Member	
	Ms. Kathleen A. Newman		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 Other Than Honorable (OTH) Discharge be upgraded to honorable.

APPLICANT STATES:  That under 38 CFR (Code of Federal Regulations) 3.12, he was AWOL less than 180 days as a trainee therefore, he should have received a trainee discharge rather than a Chapter 10, OTH.  He contends that he was promised leave for the birth of his child and when his child was born he was never advised.  He says that he never would have left the military had he been aware of the UCMJ.  He was given an OTH by mistake.  What he did was wrong and he would change it if he could because he needs DVA medical assistance.  He has been in the ARNG for 17 years since this incident and he would like his discharge corrected.  He also alludes to being the subject of biological warfare experimentation in 1982.

In support of his request, he has included a copy of his DD Form 214, Certificate of Release or Discharge, a copy of his discharge certificate, copies of birth certificates for several of his children and a letter outlining the circumstances of his OTH discharge.

EVIDENCE OF RECORD:  The applicant's military records were not available.  Information herein was derived from document he has provided.

He entered active duty on 26 September 1979 at age 26.  He departed absent without leave (AWOL) on 3 October 1979 and was returned to military control on 27 January 1980.  The facts and circumstances pertaining to the applicant's discharge are not on file.  The DD Form 214, indicates, however, that the applicant was discharged on 1 April 1980, under Army Regulation (AR) 635-200, Chapter 10, for the good of the service and was issued an OTH discharge.

He arrived at the Army Reception Station on 26 September 1979.  Prior to  departing home, he had anticipated that his wife would deliver their second child (he delivered four of his six children at home).  The child was born on                 .  He was never contacted regarding the birth.  When he was unable to get in touch with anyone at home he requested leave which was denied.  On 3 October 1979 he departed AWOL.  He was arrested and returned to military control 3 months and 24 days later and received a Chapter 10, OTH discharge.

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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

38 CFR 3.12 provides, in pertinent part, instructions for the DVA concerning the award of benefits notwithstanding the character of a veterans 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 the absence of evidence to the contrary, it is presumed that the chapter 10  discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

2.  The applicant’s claim that he was “given” a chapter 10 discharge is inconsistent with the facts of Chapter 10, AR 635-200.  As indicated above, chapter 10 is a voluntary action on the part of an accused who has been charged with a crime punishable by court-martial and requires counseling by a military attorney before the accused is permitted to request a chapter 10 discharge.  Therefore, it appears that the applicant requested the administrative discharge he received rather than risk the consequences of a trial by court-martial as opposed to it being “given” to him.

3.  He contends also that he went AWOL to be with his wife following the birth of his child.  That child was born on 28 September.  He went AWOL on 3 October and was arrested and returned to military control on 28 January almost 4 months later.  A reasonable person might assume that the absence would have ended shortly after it was ascertained that everything at home was in order.  Instead, considering the length of his absence and the fact that it was terminated by his arrest, it could be concluded that he had no intention of voluntarily returning at all.  

4.  Insofar as his allegation that he was the subject of a biological warfare experiment is concerned, he has presented no evidence and there are no medical records showing that he was involved in such testing.

5.  The CFR referred to by the applicant provides regulatory guidance for the DVA in determining veterans benefits and is not a directive for determining the type and character of discharge from active duty.  His administrative separation is presumed to have been accomplished in compliance with applicable regulations and he has presented no evidence to show that it was not.

6.  The facts as set down by the applicant regarding the circumstances of his OTH are less than persuasive.  He fails, for example, to account for his lengthy period of AWOL following the birth of his child and he appears less than candid when he states that he was unaware of the UCMJ and was “given” a chapter 10 discharge rather than requesting it.  In sum, his personal problems seem to have been of his own making and the information he has provided does not warrant upgrading his discharge.

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

_esc ____  _sk_____  _kan____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2000026665	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000302	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  110.02		
2.   144.0143		
3.   		
4.		
5.		
6.