MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 September 2001  
	DOCKET NUMBER:   AR2001058343

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. Thomas E. O’Shaughnessy		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 discharge under other than honorable conditions be upgraded.

APPLICANT STATES:  That he was discharged from the Army by court-martial due to personal problems which caused him to go absent without leave (AWOL). He contends that his brother had been convicted of a crime and was sentenced to 25 years in prison, that his mother had a heart condition, that he was the oldest of ten children and he felt responsible for them.  He states that he made a bad judgement call when he decided to go AWOL instead of dealing with his problems.  He goes on to state that he wants to make amends for any misjudgments that he made.  

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

The applicant entered active duty on 10 June 1976, served in Germany as an armor reconnaissance vehicle driver and was honorably discharged on 
10 January 1979 for immediate reenlistment.  He reenlisted on 11 January 1979.

The applicant went AWOL on 19 November 1979 and returned to military control on 24 November 1979.  

On 14 January 1980 nonjudicial punishment was imposed against the applicant for being AWOL from 4 January 1980 to 7 January 1980.  His punishment consisted of a forfeiture of pay, a reduction to E-2 (suspended for 90 days) and correctional custody for 30 days (suspended for 90 days).   

The applicant went AWOL on 4 March 1980 and returned to military control on 
17 October 1980.  Charges were preferred against the applicant on 31 October 1980 for being AWOL.

On 3 November 1980, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the VA; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Discharge.  Additionally, he elected to submit a statement in his own behalf.  In summary, the applicant stated that he wanted out of the Army because of family problems.
  
The intermediate commanders recommended that the applicant’s request for discharge be approved and that he be discharged under other than honorable conditions.   

On 18 November 1980 the separation authority approved the applicant’s request for discharge and directed that he be discharged under other than honorable conditions.

Accordingly, the applicant was discharged under other than honorable conditions on 30 January 1981 under the provisions of Army Regulation 635-200, chapter 10.  He had served 1 year, 4 months and 22 days of total active service on his second enlistment with 242 days of lost time due to AWOL.

There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 reviewed the applicant’s brief record of service on his second enlistment and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

2.  The Board also determined that this record of service which included one nonjudicial punishment and 242 days of lost time was not satisfactory.  Therefore, the applicant is not entitled to a general discharge.

3.  The applicant’s contention that he was discharged from the Army by reason of court-martial is not supported by the evidence of record.  Evidence of record shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial.

4.  His separation was administratively correct and in compliance with applicable regulations.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  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.

6.  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___  ENA_____  TEO_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001058343	
SUFFIX		
RECON		
DATE BOARDED	20010927	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19810130	
DISCHARGE AUTHORITY	AR 635-200 Chapter 10	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.