MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            19 September 2000
	DOCKET NUMBER:    AR2000037155

	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	
	Ms. Antoinette E. Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Hurbert O Fry Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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 under other than honorable conditions (UOTHC) discharge be reviewed and upgraded to an honorable discharge.

APPLICANT STATES:  That he did not know he could have applied for correction of his discharge 7 years ago.  He states that since he did not apply for a discharge upgrade before, that now the government should help a “former veteran and move in his behalf.”  The applicant submits no additional information in support of his case.

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

That on 16 October 1978, he enlisted in the Regular Army for a period of 3 years.  He completed his basic training and advanced training at Fort Sill, Oklahoma, in military occupational specialty (MOS) 13F10 (Fire Support Specialist).  On 31 January 1979, he was assigned to Fort Lewis, Washington, for duty.  

On 9 June 1979, he was apprehended by civil authorities and taken to Pierce County Jail, Tacoma, Washington, pending disposition of unknown civil charges.  On 11 June 1979, the applicant was released from civilian confinement after paying a fine.  Upon return to military control, he was charged with being absent without leave (AWOL) from 9-10 June 1979.   However, no punishment was imposed by military authorities.

On 9 November 1979, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty.  His punishment was for reduction to pay grade E-2 and 7 days of extra duty. 

On 1 March 1980, he was promoted to the rank of private first class, pay grade 
E-3.

On 11 June 1980, the applicant went AWOL from Fort Lewis.  He was apprehended by civilian authorities in Chicago, Illinois on 29 August 1980 and was returned to military control on the same date.  

On 11 September 1980, he was charged with violation of the Uniform Code of Military Justice, Article 86, for being AWOL from 11 June to 29 August 1980.  

On 12 September 1980, the applicant consulted with legal counsel, requested discharge under the provisions of chapter 10, Army Regulation AR 635-200, in lieu of trial by court martial, and submitted a statement in his own behalf.  The statement outlined his personal reasons for going AWOL, because he was denied a hardship discharge and also a compassionate reassignment in order to remain near his home so he could take care of his mother who became ill after his father’s death.  Further, he needed to attend to his divorce and child support problems.  He also authenticated a statement in which he acknowledged that he understood the ramifications of a UOTHC discharge.

His chain of command recommended approval.  He received a separation physical with no indication of any outstanding medical or mental conditions.  He requested and was placed on excess leave pending his discharge on 12 September 1980.  On 9 October 1980, the separation authority approved his separation with a UOTHC discharge. 

On 11 November 1980, he was separated with a UOTHC discharge, under the provisions of chapter 10, AR 635-200, by reason of conduct triable by court-martial.  He had 10 months and 5 days of creditable service, with 81 days of lost time due to AWOL.  He had 60 days of excess leave. 

There are no records to show that the applicant ever sought a discharge upgrade through the Army Discharge Review Board.

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.  Army policy states that although an honorable or general discharge is authorized, a discharge UOTHC 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 this requirement.

2.  While the Board has taken cognizance of the applicant’s contention that he went AWOL because he was experiencing marital/family problems, the Board determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the offense which led to the separation action under review.

3.  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 he received less than competent legal counsel or that his request was made under coercion or duress.

4.  The applicant's 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. 

5.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

6.  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

__hof___  __jpi_____  __rks___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037155	
SUFFIX		
RECON		
DATE BOARDED	20000919	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR 635-200/10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	144.0O	
3.	92.35	
4.		
5.		
6.