MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           3 October 2002                  
	DOCKET NUMBER:   AR2002072540

	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. Irene N. Wheeler		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Charles Gainor . 		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 type of discharge and pay grade at time of discharge be changed.

APPLICANT STATES:  In effect, he "never went before a court-martial" and that his "record was so very good before I messed-up."  He states that he is sorry and asks for help.  In support of his request he submits a copy of his prior Honorable Discharge Certificate, a copy of a 1977 Letter of Commendation, four certificates of completion for post-service training as a correctional officer for the state of Texas, and three letters of recommendation that he received as a correctional officer.

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

The applicant enlisted in the Army Reserve on 14 December 1973.  He enlisted in the Regular Army and entered active duty on 31 July 1974.  He served as an atomic munitions demolition specialist and reenlisted on 1 February 1978.  

On 30 June 1978, he was reported AWOL (absent without leave) and was dropped from the rolls as a deserter on 29 July 1978.  The applicant surrendered to civilian authorities on 21 May 1981.

Court-martial charges were preferred under Article 85, Uniform Code of Military Justice (UCMJ) for desertion.  The original charge stated that the applicant absented himself with intent to remain absent and that the civil police had apprehended him.  

On 29 May 1981, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulations 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights.  He acknowledged that he could receive an UOTHC discharge, which would deprive him of many or all of his benefits as a veteran.  He was informed 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 of a less than honorable discharge.

Although the applicant's company commander recommended that this request be accepted, the court-martial authority elected to continue the court-martial proceedings.

On 30 June 1981, an offer to plead guilty was proposed with the stipulations that the convening authority suspend any confinement at hard labor, suspend any reduction in grade, and suspend any bad conduct discharge, if so adjudged, for 6 months, to be remitted at that time unless sooner vacated.

The applicant pled guilty, except for the words "and with intent to remain away there from permanently", "in desertion", and "he was apprehended".  The applicant pled not guilty to the excepted words and to the charge of violation of Article 85 but guilty to violation of Article 86, being AWOL.  The applicant's plea was accepted and he was found guilty of violation of Article 86.  His sentence consisted of reduction to the grade of private E-1; forfeiture of  $300 per month for five months, confinement at hard labor for five months, and discharge from the service with a bad conduct discharge.  The convening authority approved the sentence according to the pretrial agreement by reducing the forfeiture to $150 per month for five months, suspending the reduction, confinement, and the bad conduct discharge.  The case was sent for review by the U.S. Court of Military Review.

On 5 August 1981, the applicant was placed in a monitored probation status, which he successfully completed.  The unexecuted portion on his sentence was properly vacated upon completion of the provisions of his probation.

The applicant went AWOL a second time from 8 March 1982 through 1 August 1982.  Although the discharge packet is not of record, the evidence of record shows that the applicant again requested that he be discharged under the provisions of Chapter 10.  

The applicant was discharged on 10 September 1982, under the provisions of Chapter 10, Army Regulation 635-200, with a characterization of under other than honorable conditions.  The narrative reason for separation is "Administrative discharge, conduct triable by court-martial."  The applicant had a total of 5 years, 10 months, and 4 days of creditable service with 1203 days lost due to AWOL.

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.

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.  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. The character of the discharge is commensurate with his overall record.

2.  The applicant's request for an upgrade based on good post-service conduct is noted; however; there is no available evidence of record of any activities that are so exceptionally meritorious as to outweigh the offenses of record that resulted in his discharge.

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

__INW___  __WTM_  ___CG   _  DENY APPLICATION

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

INDEX

CASE ID	AR2002072540	
SUFFIX		
RECON		
DATE BOARDED	20021003	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.00	
2.		
3.		
4.		
5.		
6.