MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 November 2001
	DOCKET NUMBER:   AR2001059689

	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:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Regan K. Smith		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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD) and the reason for his discharge be changed to one more favorable.  

APPLICANT STATES:  In effect, that he returned home on emergency leave after his brother was involved in an accident that placed him in a coma.  When his emergency leave expired he reported to Fort Hamilton, New York and requested an extension to his leave.  He was advised that he would have to provide a letter that confirmed he was the only care giver for his brother in order for his leave to be extended and after providing this letter twice he was still denied an extension to his leave.  He further states that he felt an obligation to remain with his brother, which he did until his brother later died.  He claims that immediately after the death of his brother he reported back to military control.  He indicates that given the extenuating circumstances involved his discharge was too harsh.  In support of his application, he provides a certificate of death for his brother and a copy of his Personnel Qualification Record (DA Form 2-1).

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

On 5 September 1978, the applicant was ordered to active duty from the Army National Guard and continuously served until being honorably discharged for the purpose of immediate reenlistment on 20 September 1979.  On 21 September 1979, he reenlisted on the period of enlistment under review.  He was trained and served in military occupational specialty (MOS) 45B (Small Arms Repairer) and the highest rank he attained during his active duty tenure was specialist/E-4. 

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition during his active duty tenure.  It does show that on 6 December 1982, he was placed in an absent without leave (AWOL) status after failing to report back to his unit at the completion of his approved ordinary leave.  He remained away for 33 days until returning to military control at the Personnel Control Facility, Fort Dix, New Jersey, on 9 January 1983. 

On 14 January 1983, the applicant was notified that a court-martial charge was being preferred against him for being AWOL from 6 December 1982 to 
9 January 1983.  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 24 January 1983, the appropriate authority approved the applicant’s discharge request and directed that he be separated UOTHC and that he be reduced to the lowest enlisted grade.  

On 15 February 1983, the applicant was discharged accordingly.  At the time of his discharge he had completed a total of 4 years, 4 months, and 7 days of creditable active military service and he had accrued 33 days of time lost due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review board for upgrade of his discharge within its 15-year statue 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 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 he was twice denied an extension of authorized emergency leave to take care of his brother who was in a coma and that this was a mitigating factor in the AWOL related misconduct that ultimately resulted in his discharge.  However, notwithstanding the death certificate provided, the Board finds the evidence of record and independent evidence provided by the applicant does not support this claim.  

2.  The evidence of record shows the applicant was declared AWOL after his ordinary leave ended and that he was charged with the commission of an offense 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 requested separation from the Army in lieu of trial by 
court-martial and in doing so he admitted guilt to the stipulated offense 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 type of discharge and the reasons therefore were appropriate considering all the facts of the case. 

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

__JLP__  __MHM__  __RKS___  DENY APPLICATION

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

INDEX

CASE ID	AR2001059689	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/11/20	
TYPE OF DISCHARGE	( UOTHC)	
DATE OF DISCHARGE	19830215	
DISCHARGE AUTHORITY	AR635-200, Chapter 10.  .  .  .  .  	
DISCHARGE REASON	For the Good of the Service	
BOARD DECISION	( DENY)	
REVIEW AUTHORITY		
ISSUES         1.	70.00	
2.		
3.		
4.		
5.		
6.