MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 August 2001
	DOCKET NUMBER:   AR2001056105

	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. P. A. Castle		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman, Jr.		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 the narrative reason for his separation on his DD Form 214 (Certificate of Release of Discharge from Active Duty) be changed from “For the Good of the Service – In lieu of Court Martial” to “For the Good of the Service”.

APPLICANT STATES:  In effect, that at the time of his discharge his actions were due to extraordinary circumstances and his inability to communicate effectively with his superiors.  He states that in July 2000 the Army Discharge Review Board (ADRB) changed his discharge from “under other than honorable conditions” to “general, under honorable conditions” and restored his grade to Sergeant/E5.  He further claims the narrative reason for discharge is creating a problem with his ability to obtain employment in law enforcement.

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

On 28 February 1990 the applicant reenlisted for a period of two years.  His military record shows two prior active duty periods from 31 August 1984 to 
26 March 1987 and from 27 March 1987 to 27 February 1990 in which he received honorable discharge certificates.

Upon completion of a seven month tour of active duty in the Persian Gulf, the applicant was assigned to Fort Bragg, NC in April 1991.  On 24 September 1991 he received non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being two days absent without leave (AWOL).  The applicant stated the reason for the AWOL was to protect his mother in New York from ongoing rioting in her neighborhood.  

In November 1991 the applicant was charged with AWOL from 4 October 1991 to 13 November 1991.  The applicant’s reason for the AWOL was to obtain the proper health care for his condition from a civilian doctor and to get some rest. 

On 19 November 1991 he consulted with legal counsel and having been advised submitted a statement with his signature wherein he voluntarily requested discharge from the Army under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.  He also submitted a statement in support of his request where he acknowledged his guilt in the charges preferred against him and further indicated that he understood that he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  

On 25 November 1991 the appropriate authority approved the applicant’s request for discharge and issuance of a discharge under other than honorable conditions. Accordingly, on 16 December 1991 he was discharged after completing 7 years, 2 months, and 7 days of creditable service and 39 days AWOL.

On 9 June 2000 the ADRB upgraded the applicant’s characterization of service from under other than honorable conditions to general, under honorable conditions and restored his pay grade E-5.  The ADRB denied his request for a change in the reason for discharge and found that his narrative reason for separation was both proper and equitable.

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 record is absent of evidence that the applicant did not understand the nature and consequences of his decision to willfully absent himself without leave to stay with his mother and again to seek medical care and rest.

2.  The Board is cognizant that the two periods of AWOL spoiled his otherwise clean military record in over seven years of active duty service.  However, unless the Board is presented evidence that the applicant was not discharged “for the good of the service in lieu of court-martial” there is no error or injustice.

3.  Considering the seriousness of the offense for which the applicant was charged, the reason is still appropriate.  While the Board is empathetic, the applicant’s employment difficulties are not sufficiently mitigating to warrant a change to the narrative reason for separation. 

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

__rtd____  ___js ___  ___dh___  DENY APPLICATION

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

INDEX

CASE ID	AR2001056105	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/08/28	
TYPE OF DISCHARGE		
DATE OF DISCHARGE	1991/12/16	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.00	
2.		
3.		
4.		
5.		
6.