MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 August 2001                   
	DOCKET NUMBER:   AR2001057770

	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	
	Mrs. Nancy Amos		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:  That his discharge under other than honorable conditions (UOTHC) be upgraded.

APPLICANT STATES:  That he admits he made an error.  At the time he decided to get out he did not know the Army’s laws nor did he have command of the English language.  He needs the upgrade to received medical assistance as       a cancer patient.  He provides a 3-page Tissue Examination Report dated           26 February 2001 and an Operation Report dated 9 March 2001 as supporting evidence.

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

He enlisted in the Regular Army on 7 January 1975.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 12B (Combat Engineer) and later awarded primary MOS 12C (Bridge Specialist).  He was promoted to Private First Class, E-3 on 1 September 1975.

It cannot be determined if the applicant had ever accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice.  The Army Discharge Review Board (ADRB) action indicates he had received an Article     15 dated 30 June 1975 for misconduct.  The Characterization of Service Checklist for Administrative Discharge Actions, USAARMC Form 4939, with his discharge packet indicates he had none.  No Article 15 is filed in his records.

On 21 September 1976, court-martial charges were preferred against the applicant charging him with absence without leave (AWOL) for the period 20 May to on or about 7 September 1976. 

On 14 September 1976, the applicant completed a separation physical examination and was found qualified for separation.

On 23 September 1976, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted a statement in his own behalf wherein he noted that the primary reason he went AWOL was that his common law wife left him.  When he got home it ended up that she was legally married to someone else.  So he decided to work a couple of months and return to Puerto Rico.  He never lived far away from his family before and his family needed him.  

On 29 September 1976, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

On 14 October 1976, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  He had completed 1 year, 5 months, and 11 days of creditable active service and had 120 days of lost time. 

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.  A discharge UOTHC is normally considered appropriate.

On 15 February 1984, the ADRB denied the applicant’s request for an upgraded discharge.

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 the request was made under coercion or duress.

3.  The Board notes that the applicant successfully served over 1 year in the Army prior to his departing AWOL.  His command of the English language was sufficient for him to have successfully completed basic training and advanced individual training and to be promoted to Private First Class prior to his departing AWOL.  He should have been well aware of the Army’s laws concerning AWOL at the time he departed AWOL.  The Board is empathetic with the applicant’s current medical problems; however, that is insufficient reason to upgrade his discharge.

4.  Regrettably, 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

__jns___  __rtd___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2001057770	
SUFFIX		
RECON		
DATE BOARDED	20010828	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19761014	
DISCHARGE AUTHORITY	AR 635-200, ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.