MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           10 December 2002                  
	DOCKET NUMBER:   AR2002070440

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Conrad V. Meyer		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 the date of discharge be changed from 19 December 2001 to 21 September 2000.

APPLICANT STATES:  In effect, he signed out on 21 September 2000 and was told that everyone could rejoin with a 2-year wait and the 21st was the date that would be on the discharge.  He submits a copy of the Request and Authority For Leave, (DA Form 31) to support his contention.

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

The applicant was honorably discharged from the Army National Guard on 26 October 1999 and enlisted in the Regular Army.

He was reported absent without leave (AWOL) on 10 January 2000 and dropped from the roles as a deserter effective 9 February 2000.  The applicant was apprehended by civilian authorities and returned to military control on 3 September 2000.

Court-martial charges were preferred for his 237 days AWOL.  The applicant was afforded a physical examination and was found qualified for separation.

On 21 September 2000, after consulting with counsel and being advised of his rights and options, the applicant admitted that he was guilty of the offense, or lesser-included offense, that could result in a punitive discharge.  He submitted a formal request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulations 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an under other than honorable conditions (UOTHC) discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge, and that there is no automatic upgrading or review.

Also on 21 September 2000, the applicant submitted a DA Form 31 requesting to be placed in an excess leave status pending finalization of his request for discharge.  

The next entry in the applicant's record is a 16 November 2001 memorandum forwarding the applicant's request for discharge in lieu of trial by court-martial to the discharge authority.  

On 29 November 2001, the discharge authority approved the applicant's request and directed that the applicant be reduced to the lowest enlisted grade (E-1) and receive an under other than honorable conditions discharge.  The applicant was discharged on 19 December 2001.

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.  While an honorable or general discharge may be 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, and applicable law and regulations, it is concluded:

1.  The DA Form 31, submitted by the applicant shows that he was placed in an excess leave status as of 21 September 2000, at his own request.  He was not discharged on that date.  While there is no explanation for the protracted time involved in the finalization of his request for discharge, he was still subject to military control until his request was finalized with his discharge on 19 December 2001.  There is no evidence to substantiate his contention of what he was told and no error or injustice in the delay.

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, in conformance with applicable regulations, and his service was appropriately characterized by his record, which is devoid of redeeming service.

3.  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.

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

_CLA___  __TSK___  __CVM__  DENY APPLICATION

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

INDEX

CASE ID	AR2002070440	
SUFFIX		
RECON		
DATE BOARDED	20021210	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.02	
2.		
3.		
4.		
5.		
6.