MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 August 2002
	DOCKET NUMBER:   AR2002072376

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Jose A. Martinez		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 be upgraded to a general discharge.

APPLICANT STATES:  In effect, that he is not proud of how his military life and career ended in such an unfavorable manner but he was 17 years of age with big ideas and believed he was bulletproof.  He goes on to state that in the middle of basic training he married his pregnant 16 year old high school sweetheart.  He finished his training and proceeded to Fort Carson, Colorado, where he and his wife set up house.  He continues by stating that they began to experience marital problems and he now realizes that they were simply too young to accept the responsibilities they had undertaken.  While deployed to Europe for a REFORGER exercise, his wife returned to Pennsylvania with their child, without his knowledge.  When he returned he discovered she was gone and when she contacted him, she told him to get out of the Army or the marriage was over.  The next day his mom called to tell him that she was leaving his father after 22 years of marriage.  Because he had used all of his leave, he could not get an emergency leave.  So, thinking that if he could get to Pennsylvania he could make everything better, he went AWOL, only to find that his wife was living with another man.  He also states that there is great humility in failure and he had a good serving, so he turned himself in at Fort Dix, New Jersey.  He has divorced his wife and has made every attempt to improve his standing in society.  If he is granted an upgrade of his discharge he will continue his education.  In support of his application he submits a copy of his resume. 

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

He enlisted at age 17 on 4 November 1975, for a period of 3 years, training as an infantry indirect fire crewman and assignment to Fort Carson.  He was single at the time of his enlistment.  He successfully completed his training and was transferred to Fort Carson on 11 March 1976.  He was advanced to the pay grade of E-3 on 1 August 1976.

On 23 September 1976, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 10 September to 16 September 1976.  His punishment consisted of a reduction to the pay grade of E-1 (suspended for 60 days), a forfeiture of pay (suspended for 60 days) and extra duty.

On 7 February 1977, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-2 (suspended for 60 days), a forfeiture of pay (suspended for 60 days) and extra duty.

He was advanced to the pay grade of E-4 on 4 November 1977.

On 17 January 1978, he was confined by civil authorities for missing a court date. He was released on 19 January 1978 and was returned to military control.
 
On 13 February 1978, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-3 (suspended for 60 days), a forfeiture of pay and extra duty.

On 26 May 1978, NJP was imposed against him for two specifications of failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-3 and a forfeiture of pay. 

On 21 August 1978, NJP was imposed against him for being AWOL from 12 August to 13 August 1978.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, and 30 days in correctional custody.

The applicant went AWOL on 24 August 1978 and remained absent until he surrendered to military authorities at Carlisle Barracks, Pennsylvania on 7 February 1979.  He was transferred to Fort Dix, where charges were preferred against him for the AWOL offense on 12 February 1979.

He was advised of his rights and informed officials that he had departed AWOL because he was having marital problems (getting a divorce) and he was completely disinterested in serving in the Army any longer.  He stated that he could not handle responsibility well and he had told his superiors that he though it would be better if they discharged him.  When they took no action, he went AWOL.  He further indicated that he could not reconcile with his wife and he could not adjust to Army life, he simply wanted out of the Army.  His records indicate that he was married and his son was born on 6 May 1976, 2 months after his arrival at Fort Carson.

On 13 February 1979, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request, he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses, which authorized the imposition of a bad conduct or dishonorable discharge.  He further elected not to submit a statement in his own behalf.

The appropriate authority (a major general) approved his request on 2 March 1979 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 20 March 1979, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 5 months, and 18 days of total active service and had approximately 222 days of lost time due to AWOL and confinement.

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  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 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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the number and length of his absences as well as his otherwise undistinguished record of service. 

4.  The Board has noted the applicant’s contentions.  However, the Board finds that they are not sufficiently mitigating to warrant relief when his overall record of service and his disciplinary record are taken into consideration.  The Board also notes that many soldiers enter the Army at a young age and successfully complete their enlistments without any disciplinary actions being taken against them.  The applicant was afforded many opportunities to overcome his infractions and apparently elected not to do so.  Although he may have been experiencing marital problems, there were other avenues to take rather than going AWOL.  While the Board commends him for his attempts to turn his life around, it does not find a sufficient basis to condone his actions or to upgrade 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

__inw ___  __js  ____  __jm____  DENY APPLICATION

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

INDEX

CASE ID	AR2002072376	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/15	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1979/03/20	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.