MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           5 September 2002                   
	DOCKET NUMBER:  AR2002072971

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 honorable.

APPLICANT STATES: That he feels his discharge was an error and injustice due to the fact that he was having family hardships, which kept him from being able to perform his military duty at that time.  He indicates that he was told he would receive a general, under honorable conditions discharge.  He had been waiting patiently to become a New York City Policeman; however, with his less than honorable discharge he could not.  He further indicates he has always wanted to serve his country with pride as well as his city and community.  To become a New York City Policeman would give him a chance to help his community like he always wanted.

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

During the period 25 July to 26 October 1981, he was a member of the Army Reserve Delayed Enlistment Program.

On 27 October 1981, he enlisted in the Regular Army.  He completed his required training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was advanced to pay grade E-2, effective 28 April 1982.

On 8 June 1982, the applicant was absent without leave (AWOL).  There is no evidence that action was taken in this matter.

On 15 June 1982, he was administered nonjudicial punishment under Article 15, Uniform Code of Military Justice, for disobeying a lawful order on 4 June 1982.  His punishment included a reduction to pay grade E-1, forfeiture of $200.00 pay per month for 2 months and 30 days ITU (sic).

On 26 October 1982, as part of his processing upon his return to military control from AWOL, he indicated “I went AWOL from Fort Carson because I did not like the Army and was having family problems.”  The applicant’s First Sergeant denied any knowledge of any family problems he might have had.

On 26 October 1982, the unit commander preferred court-martial charges against the applicant for being absent without leave for the period 5 September to         25 October 1982.  

On 26 October 1982, the applicant signed a statement that, “I do not desire a separation medical examination.” 

On 27 October 1982, after consulting with legal counsel, the applicant voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged that he could receive a bad conduct or dishonorable discharge; that he was guilty of the charges against him; that he had consulted with legal counsel; and that he had no desire to perform further military service.  

On 4 November 1982, the appropriate separation authority approved his request, directed his reduction to pay grade E-1 and that a discharge UOTHC be issued.

On 18 November 1982, the applicant was discharged, in pay grade E-1, with a discharge UOTHC, under the above-cited regulation.  His separation document indicates he had 11 months and 2 days of creditable service and 50 days of lost time.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial of the service in lieu of trial by court-martial.  At the time of the applicant’s separation, the regulation provided for the issuance of an Undesirable Discharge Certificate.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 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.

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 or duress.
3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The applicant's contentions of family problems have been noted; however, they are not sufficiently mitigating to warrant relief.

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

_CLA____  _MHM___  _JTM___ DENY APPLICATION

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

INDEX

CASE ID	AR2002072971	
SUFFIX		
RECON		
DATE BOARDED	20020905	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144	
2.		
3.		
4.		
5.		
6.