MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           2 July 2002
	DOCKET NUMBER:   AR2002067170

	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. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Raymond J. Wagner		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 Discharge be upgraded to honorable.

APPLICANT STATES:  In effect, that he was not given a chance to face his commanding officer and state his case.  He submits no evidence to support his request.

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

He enlisted in the Regular Army on 24 February 1978, for a period of 3 years.  At the time of enlistment, he was 20 years old, had completed high school, and had an Armed Forces Qualification Test score of 28, which placed him in Mental Category IV (indicating soldiers with slow learning abilities).

On 29 October 1980, a Charge Sheet was prepared charging the applicant for absence without leave (AWOL) from 26 March 1980 until on or about 24 October 1980.

On 29 October 1980, the applicant underwent a mental status evaluation and was found mentally capable of understanding and participating in the separation proceedings.

On 4 November 1980, the applicant completed a separation physical examination for the purpose of a chapter 10 discharge.  He was found qualified for separation.

On 13 November 1980, the applicant submitted his Request for Discharge for the Good of the Service.  It shows that he was charged on 29 October 1980 with violation of Article 86, AWOL, for the period 26 March 1980 to 24 October 1980, and that the maximum punishment for this offense was forfeiture of two thirds pay per month for six months and confinement at hard labor for six months. The name of the applicant's counsel is listed; however, the form is not signed by the counsel or the applicant.

Also on 13 November 1980, the applicant completed a Personal Statement in Support of his Request for Discharge For The Good of The Service.  In response to questions on the form the applicant indicated that he went AWOL due to family problems, that he did not like Army life and he wanted to be discharged.

On 14 November 1980, the Personnel Control Facility Commander recommended approval of the applicant's request for separation and further recommended that he be provided an Under Other Than Honorable Conditions Discharge Certificate.

On 25 November 1980, the appropriate authorities approved the request for discharge and directed the applicant be reduced to the lowest enlisted grade and receive an Under Other Than Honorable Conditions Discharge Certificate.

A DD Form 214, Certificate of Release or Discharge From Active Duty, signed by the applicant, reflects that on 3 March 1981, the applicant was discharged in pay grade E-1, under the provisions of Army Regulation 635-200 (Enlisted Personnel) chapter 10, for conduct triable by court-martial.  He had completed 2 years, 5 months and 9 days of creditable active service and had lost time for the period 26 March 1980 to 23 October 1980.

On 5 October 1994, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

Army Regulation 635-200, Enlisted Personnel, in effect at the time, 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 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.  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 applicant provided no details to explain his contention that he was not able to face his commanding officer or why he could not make his thoughts known to the various commanders that considered his request for chapter 10 discharge.  When presented with an opportunity to make a statement in his own behalf the applicant stated he went AWOL because of family problems, he did not like Army life, and he wanted to be discharged.  Despite the absence of signatures on the legal counseling form, the Board believes the applicant was made aware of his options and decided that requesting a discharge was in his best interest versus a court-martial and a possible prison sentence.  The Board must conclude that the applicant's commanders, using the information available to them at that time, properly considered and accepted the applicant's request for discharge.

4.  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

___kak __  ___aao__  ____rjw_  DENY APPLICATION

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

INDEX

CASE ID	AR2002067170	
SUFFIX		
RECON		
DATE BOARDED	20020702	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR 625-200, ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.