MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            27 March 2001                  
	DOCKET NUMBER:   AR2000045676

	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 Jones-Farley		Analyst	

The following members, a quorum, were present:

	Mr.	Roger W. Able		Chairperson	
	Mr.	Allen L. Raub		Member	
	Ms.	Gail J. Wire		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 feels that his prior service was fine.  He was young during his period of enlistment and clearly did not understand what was happening at the time of separation.  He states that he was new to his unit and his wife was very ill.  He asked his first sergeant if he could miss duty in order to help take care of his wife.  His sergeant told him to write a letter, explaining why he needed the time off.  He presented this letter to his sergeant, who proceeded to tear it up in front of him and threw it in his face.  They had a bad argument, which resulted in him leaving, and the Army listed him as being absent without leave (AWOL).  He states that after he voluntarily returned to the Army, he was given choices that he did not understand.  As a result of his confusion, he received a chapter 10 discharge.  He submits a copy of his DD Form 214 (Report of Separation from Active Duty) dated 22 February 1980.

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

On 13 February 1979, he enlisted in the Delayed Entry Program (DEP) of the United States Army Reserve.  On 13 March 1979, he was discharged from the DEP and enlisted in the Regular Army (RA) for 3 years.  He was then assigned to one-station-unit-training and awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman) at Fort Benning, Georgia on 14 June 1979.  On 26 June 1979, he was assigned to Fort Stewart, Georgia for duty.  

His records show that he went AWOL on 2 August 1979 and remained AWOL until he voluntarily returned to military control at Fort Bragg, North Carolina on 
19 January 1980. 

On 23 January 1980, the applicant was charged with an AWOL offense.  He was medically cleared for separation on 23 January 1980.  He consulted with legal counsel and voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  In this request he stated that he understood that the offense could result in a punitive discharge and that he would receive a UOTHC.  

He also stated that he understood the impact that such a discharge could have on his veteran benefits, to include medical benefits.  During this process he stated to his unit commander that his 170-day AWOL was caused by family problems and his mother needed help in raising his siblings at home.  He further states that his father was an alcoholic and drunk up his total pension check received from the Navy.  He claims that he requested a discharge numerous times; however, no one would grant him a discharge.  As a result, he went AWOL.  When his unit commander suggested that he was considering keeping the applicant in the Army, the applicant responded by saying his family comes first and he would be AWOL before the commander had a chance to do anything about it.  The applicant only wanted to be discharged from the service with a UOTHC.

On 24 January 1980, the commander recommended approval of the request for discharge with a UOTHC discharge. 

On 7 February 1980, the separation authority approved the separation. 

On 22 February 1980, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of administrative discharge-conduct triable by court-martial with a UOTHC discharge.  He was credited with 
5 months and 21 days active service and 168 days lost time.

On 14 February 1983, the Army Discharge Review Board denied his request for upgrade of his 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 a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Although an honorable or a 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.  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.  He also told the commander that he would again go AWOL if he were required to remain on active duty. 

3.  While the Board has taken cognizance of the applicant’s contention that he went AWOL because he was experiencing 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.

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

5.  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

__rwa___  __alr____  __gjw____  DENY APPLICATION

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

INDEX

CASE ID	AR2000045676	
SUFFIX		
RECON		
DATE BOARDED	2001/03/27	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1980/02/22	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	A94.07	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	A123.01	
2.		
3.		
4.		
5.		
6.