MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:	   12 September 2002
	DOCKET NUMBER:   AR2002071340

	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	
	Mrs. Judy Blanchard-Miller .		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. William D. Powers		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 discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge.   

APPLICANT STATES:  In effect, that the type of offense did not warrant the type of discharge.  While in service, the applicant states, that he was not correctly diagnosed with a nervous condition.  Many times after service he was treated for the nervous condition and should have been treated during service.  The applicant submits with his application his Report Of Separation From Active Duty (DD Form 214), and a copy of his medical record from active duty. 

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

On 24 May 1977, the applicant enlisted in the Regular Army for 4 years.  He completed the required training and was awarded military occupational specialty 63B10 (Wheel Vehicle Mechanic).  The highest grade he achieved was pay grade E-3.

On 30 May 1978, the applicant accepted nonjudicial punishment, under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 8 to 16 May 1978.  His imposed punishment was a forfeiture of $90.00 pay; 14 days extra duty and a reduction to pay grade E-1 (suspended for 60 days).  On 
8 June 1978, the suspension of the punishment of reduction to pay grade E-1 was vacated. 

On 21 December 1978, court-martial charges were preferred against the applicant for being AWOL from 27 July to 19 December 1978. 

On 22 December 1978, a mental and a physical examination found the applicant fit for retention.  The applicant’s record does not show that he had a nervous condition.

On 27 December 1978, after consulting with legal counsel the applicant voluntarily without any coercion requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  The applicant acknowledged, that he understood the elements of the offense charged.  The applicant waived further rehabilitation and was advised of the effects of a discharge under other than honorable conditions.  He acknowledged that he understood, that he might be deprived of many or all Army and Veterans Administration benefits.  He was afforded the opportunity to submit statements in his behalf, but decline to do so.  

On 29 December 1978, the company commander, recommended approval of the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10.  The commander’s decision was based on a personal interview with the applicant.  The applicant stated, that he was aware of the nature of the interview and the consequences of a discharge UOTHC; however, he desired elimination from the service under the provisions of Army Regulation 635-200, chapter 10.  The applicant further stated, that his AWOL was caused by his dislike for military life, that he could not adjust to the military way of life and that he wanted to get out of the Army with a less than honorable discharge.  In view of the applicant’s conduct, his attitude toward the military and his lack of rehabilitative potential, the commander recommended approval of the applicant’s request for discharge.

On 8 January 1979, the appropriate authority approved the applicant’s request for discharge and directed the issuance of a Discharge Under Other Than Honorable Conditions Certificate.  On 17 January 1979, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC.  He completed 1 year, 2 months and 20 days of creditable active military service and 179 days of time lost.  

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 UOTHC 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, duress or that his rights were violated in any way.

3.  The contentions of the applicant have been noted.  However, there is no evidence in his medical records of a nervous condition; nor has the applicant submitted probative evidence or a convincing argument in support of the request.

4.  The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

5.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s requests. 

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

__JNS__  __DPH___  __WDP__  DENY APPLICATION

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

INDEX

CASE ID	AR2002071340	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/12	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	1979/01/17	
DISCHARGE AUTHORITY	AR635-200, chp10.  .  .  .  .  	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 144.7000		
2.		
3.		
4.		
5.		
6.