MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 March 2001
	DOCKET NUMBER:   AR2000050695

	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	
	Mr. Joseph A. Adriance		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:  In effect, that his under other than honorable conditions (UOTHC) discharge be upgraded.  

APPLICANT STATES:  In effect, that the discharge he received was too harsh and he has submitted over 20 character reference statements from individuals attesting to his post service good character, values, ethics, and work accomplishments. 

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

On 30 January 1979, he enlisted in the Regular Army for three years and he was assigned to One Station Unit Training at Fort Knox, Kentucky for basic Armor training.  

On 1 April 1979, the applicant departed absent without leave (AWOL) from his unit and remained away until returning to military control on 19 April 1979.  Upon his return, he immediately again departed his unit AWOL on 19 April 1979 and was dropped from the rolls of his organization on 24 April 1979.  

On 22 March 1980, the applicant was apprehended by civil authorities in Lufkin, Texas and on the same day returned to military control at the Personnel Confinement Facility (PCF), Fort Sill, Oklahoma.

On 4 April 1980, a Department of Defense (DD) Form 458 (Charge Sheet) was prepared, in which a court-martial charge with two specifications of AWOL was preferred against the applicant for of violation of Article 86 of the Uniform Code of Military Justice (UCMJ).

Also on 4 April 1980, the applicant consulted legal counsel and after being advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment under the UCMJ, the effects of a UOTHC discharge, voluntarily requested discharge for the good of the service, under the provisions of chapter 10, Army Regulation 635-200.  

In his discharge request, the applicant acknowledged his guilt of the offenses for which he was charged and of what the effects of his receiving a UOTHC discharge would be, including his being deprived of many or all Army benefits, that he could be ineligible for benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of veterans benefits under both Federal and State law.  Finally, the applicant elected not to submit a statement in his own behalf. 

On 23 April 1980, the appropriate authority approved the applicant’s request for discharge and directed he receive a UOTHC discharge.  Accordingly, on 14 May 1980, the applicant was separated after completing just 4 months and 6 days of active military service.  

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) confirms he never completed training, was never awarded a military occupational specialty, or ever served in an operational unit.  It further verifies he earned no awards and records no documented acts of valor, significant achievement, or service warranting special recognition.  

The Department of Defense (DD) Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his discharge confirms he was separated with an UOTHC discharge, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by 
court-martial.  It also confirms the applicant completed only 4 months and 6 days of creditable active military service, which includes 41 days of excess leave from 4 April to 14 May 1980 and that he accrued 356 days of time lost due to AWOL.  

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.

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 Board acknowledges the applicant's successful transition to civilian life and wishes to congratulate him on his post service accomplishments, as evidenced in the enclosed character references.  However, after carefully examining his entire service record, the Board found that his post service accomplishments alone are not sufficiently mitigating to warrant relief. 

2.  The evidence of record shows that after serving on active duty less than three months, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and that after consulting with defense counsel, he voluntarily requested separation from the Army in lieu of trial by court-martial.  

3.  By voluntarily requesting discharge, the applicant admitted guilt to the stipulated offenses and the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the Board finds the character of the applicant’s service is commensurate with his overall record of service.

4.  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

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

__alr____  __gw____  ___ra ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000050695	
SUFFIX		
RECON		
DATE BOARDED	2001/03/27	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1980/05/14	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	In Lieu of Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.