MEMORANDUM OF CONSIDERATION

IN THE CASE OF:	

	BOARD DATE:           26 July 2001
	DOCKET NUMBER:   AR2001057253

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Eric N. Anderson		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 undesirable discharge of her deceased spouse, a former service member (FSM), be upgraded to a general, under honorable conditions discharge. 

APPLICANT STATES:  In effect, that the FSM’s characterization of service should be upgraded posthumously because he was compelled by forces beyond his control to take emergency leave, which resulted in his absences.  She contends that going absent without leave (AWOL) is not a crime, especially during peacetime.  She further states that the FSM’s death is an indirect result of his military service.  In support of her application, she submits a certificate of death, a copy of the FSM’s Armed Forces of the United States Report of Transfer or Discharge (DD Form 214), and a certificate of marriage.

EVIDENCE OF RECORD:  The FSM’s military records show:

On 3 October 1968, he enlisted in the Army for a period of 3 years.  The highest rank he attained while serving on active duty was private (E-1) and he completed just 7 months and 9 days of creditable service prior to being discharged on 
12 December 1969.  

The file indicates the FSM had three periods of AWOL totaling 211 days of time lost:  from 9 January to 17 March 1969; 11 April to 7 July 1969; and 
27 September to 21 November 1969.  He was convicted by a special 
court-martial of just the first two AWOL periods and on 26 November 1969, a 
court-martial charge was preferred against him for the third period of AWOL.

The FSM, after consulting with legal counsel and being advised of basis for the contemplated separation action and its impact, and of the rights available to him,. voluntarily, and in writing, requested separation from the Army for the good of the service, in lieu of trial by court-martial.  

The FSM’s request for discharge was approved  by the appropriate authority who directed he receive an undesirable discharge.  On 12 December 1975, he was discharged accordingly, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  

The FSM submitted a request for an upgrade of his discharge to the Army Discharge Review Board and it was denied on 19 May 1980. 

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 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.  However, at the time of the applicant's separation the regulation provided for the issuance of an UD.

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 FSM’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.  

2.  The FSM chose to request an administrative discharge rather than risk the consequences of a court-martial and the Board is satisfied that all requirements of law and regulation were met and that his rights were fully protected throughout the separation process.. 

3.  The contentions of the applicant have been noted and while the Board is empathetic with her loss of her husband, her claims are not sufficiently mitigating to warrant an upgrade to the FSM’s discharge.

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

__RVO_  __ HOF __  __ENA__   DENY APPLICATION

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

INDEX

CASE ID	AR2001057253	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/07/26	
TYPE OF DISCHARGE	( UOTHC)	
DATE OF DISCHARGE	19691212	
DISCHARGE AUTHORITY	AR 635-200, chapter 10.  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	23.00	
2.		
3.		
4.		
5.		
6.