MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           10 August 2000                  
	DOCKET NUMBER:   AR2000041581

	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. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. John Saputo		Member	
	Ms. Karen A. Heinz		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 (UOHC) be upgraded to honorable (HD).

APPLICANT STATES:  In effect, that he went AWOL because his wife and children ran off with his best friend; that his mother was dying of cancer; and, that he was emotionally incapable of handling his personal problems after he reenlisted.  The applicant submitted written statements from his family and friends supporting his contentions. 

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

On 26 November 1963 he enlisted in the Regular Army for a period of 3 years.  He completed basic combat training (BCT) at Fort Jackson, South Carolina, and advanced individual training in military occupational specialty (MOS) 94B (Food Service Specialist) at Fort Dix, New Jersey.  

On 8 April 1964 the applicant reenlisted, changing his enlistment option to “present duty assignment – Fort Dix.”

On 14 July 1966 the applicant departed Fort Dix in casual status en route to Fort Meade, Maryland.

On 28 December 1966 the applicant departed Fort Meade in casual status en route to Vietnam.

On 31 March 1967 the applicant was honorably discharged after the completion of his required time in service.  At the time of his discharge he was credited with 3 years, 4 months, and 5 days active military service.

The evidence of record shows that at the time of separation the applicant was a specialist/E-5 and in receipt of the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Good Conduct Medal, and the Republic of Vietnam Gallantry Cross Unit Citation with Palm.

On 9 August 1976 the applicant enlisted in the Regular Army for a period of 
3 years.  He completed basic combat training (BCT) at Fort Leonard Wood, Missouri, and advanced individual training in military occupational specialty (MOS) 94B (Food Service Specialist) at Fort Lee, Virginia.

On 22 October 1976 the applicant departed Fort Lee in casual status en route to Fort Hood, Texas.

On 24 November 1976 the applicant accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) (12-24 November 1976).  The punishment imposed consisted of a forfeiture of $75.

On 17 December 1976 the applicant again departed AWOL and remained so absent until he was apprehended by civilian authorities on 23 May 1977.

On 27 May 1977, the applicant was charged with AWOL.  The applicant acknowledged notification of the charges, and after legal consultation, he requested discharge in lieu of court-martial under the provisions of chapter 10, AR 635-200.  

On 10 June 1977 the appropriate authority approved his discharge and ordered him separated with an UOHC discharge.  Accordingly, on 17 June 1977 the applicant was discharged.  He was credited with 4 months and 11 days active military service, and 191 days of lost time.

Army Regulation 635-200, then in effect, sets forth 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 an 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 June 1977 discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant’s overall record of military service.  

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.  The Board notes that the applicant was properly recognized for his prior honorable service with issuance of an Honorable Discharge Certificate and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

4.  The Board also notes the applicant’s contentions and the supporting statements provided by his family indicating that he experienced emotional instability from his failing marriage and his mother’s illness.  However, the Board finds that his personal problems did not sufficiently mitigate the misconduct of record and determines that the applicant had many legitimate avenues through which to obtain assistance or relief for his personal problems, without committing the misconduct, which led to his separation from the Army.   

5.  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.

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

___mdm__  ___js__  __kah____  DENY APPLICATION

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

INDEX

CASE ID	AR2000041581	
SUFFIX		
RECON		
DATE BOARDED	20000810	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19770717	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.9435.0000	
2.	144.9307.0000	
3.	144.9231.0000	
4.	144.0100.0000	
5.		
6.