MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:           10 September 2002                  
	DOCKET NUMBER:   AR2002070469

	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:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr 		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 his discharge under other than honorable conditions (UOTHC) be upgraded.

APPLICANT STATES:  That he has been a good citizen and not in any trouble since his discharge and that he would reenlist if he could.  In a request to his Congressman for assistance, he states that he was young and stupid.  He states that his mother lied telling him she was dying which is why he was AWOL (absent without leave). 

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

The applicant entered active duty on 16 September 1982 at age 20.  He completed basic combat training and advanced individual training without reported incidents.

On 6 February 1984, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failure to go to his appointed place of duty.

On 30 March 1984, court-martial charges were preferred for violation of Article 86, UCMJ, AWOL for the period 17 February 1984 through 23 March 1984. 

On 30 April 1984, after consulting with counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial.  He waived his right to make a statement on his own behalf and to have counsel.  

In the recommendation for discharge from the Staff Judge Advocate, it was noted that the applicant had no prior convictions but had received NJP on two occasions.  Only the 6 February 1984 NJP is of record.

On 4 May 1984, the discharge authority approved the request for discharge, dismissed the court-martial charges pending, directed that the applicant be reduced to grade of private (E-1), and directed that the applicant receive a Under Other Than Honorable Conditions Discharge Certificate.

On 8 May 1984, the applicant waived his right to a separation medical examination.

On 10 May 1984, the applicant was separated under the provisions of Army Regulation 635-200, chapter 10.  He had served 1 year, 6 months and 20 days creditable service and had 36 days lost time.

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.

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

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 applicant's contention that he was young and immature at the time of his discharge is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was 22 years of age when he went AWOL.  He had satisfactory completed training and had served for over a year before any negative incidents are documented.  His satisfactory performance demonstrates his capacity to serve.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

3.  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.  The character of the discharge is commensurate with his overall record and the offense for which he voluntarily requested discharge.

4.  The applicant's request for an upgrade based on good post-service conduct is noted however; there is no evidence of record nor does the applicant provide any documentation of activities that are so exceptionally meritorious as to outweigh the offense that resulted in his discharge.

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

__FNE __  __BJE __  __WDB__  DENY APPLICATION

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

INDEX

CASE ID	AR2002070469	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	20020910	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.70	
2.	144.9301	
3.	144.9307	
4.		
5.		
6.