MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 September 2001
	DOCKET NUMBER:   AR2001059417

	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. Fred N. Eichorn		Chairperson	
	Mr. John E. Denning		Member	
	Mr. Terry L. Placek		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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD). 

APPLICANT STATES:  In effect, that he was on emergency leave in the United States due to the death of a family member and had transportation problems in trying to return to Germany.  He indicates that he eventually returned to Germany and explained his situation to his company commander but court-martial charges were still preferred against him.  In support of his application, he submits a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214).
 
EVIDENCE OF RECORD:  The applicant's military records show:

On 7 July 1978, he enlisted in the Regular Army for 3 years.  He successfully completed training and was awarded military occupational specialty (MOS) 
11B (Infantryman).  

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition and confirms that highest rank he attained while on active duty was private first class/E-3 (PFC/E-3).  However, it does show an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on the following three occasions: 17 January 1980, for failure to go to his appointed place of duty; 8 February 1980, for failure to go to his appointed place of duty; and 8 April 1980, for being absent without leave (AWOL) from 15 to 27 March 1980. 

On 15 May 1980, court-martial charges were preferred against the applicant for the following offenses: AWOL, from 25 April 1980 to 14 May 1980; breaking arrest; stealing property; and breaking restriction.  After consulting with legal counsel and being advised of the basis for the contemplated trial by court-martial; the maximum allowable punishment; and the possible effects of an UOTHC discharge, the applicant voluntarily requested to be discharged for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.

On 20 June 1980, the appropriate authority approved the applicant’s discharge request and directed he be separated UOTHC and that he be reduced to the lowest enlisted grade.  

On 16 July 1980, the applicant was discharged accordingly.  At the time of his discharge he had completed 1 year, 10 months, and 5 days of creditable active military service and had accrued 65 days of time lost due to AWOL and confinement. 

On 17 December 1984, the Army Discharge Review Board determined the applicant’s discharge had been proper and equitable and denied his request for an upgrade to his discharge.

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 court-martial charges have been preferred.  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 notes the applicant’s contention that transportation problems he had subsequent to his being on an authorized emergency leave was a mitigating factor in the AWOL related misconduct that ultimately resulted in his discharge.  However, it finds this claim is insufficiently mitigating to warrant the requested relief. 

2.  The evidence of record shows the applicant was charged with the commission of multiple offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The Board notes that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.  

3.  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.  It also notes that the characterization of service for this type of discharge is normally UOTHC and that the applicant was aware of that prior to requesting discharge.  Finally, the Board finds the applicant’s characterization of service was appropriate based on 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

_   FNE __  __JED__  _ _TLP   _  DENY APPLICATION

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

INDEX

CASE ID	AR2001059417	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/09/13	
TYPE OF DISCHARGE	(UOTHC,)	
DATE OF DISCHARGE	1980-07-16	
DISCHARGE AUTHORITY	AR 635-200.  .  .  .  .  	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	( DENY)	
REVIEW AUTHORITY		
ISSUES         1.	70.00	
2.		
3.		
4.		
5.		
6.