MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:           29 August 2002                  
	DOCKET NUMBER:   AR2002073642

	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. W. W. Osborn, Jr. .		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Harry B. Oberg		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 and that he be sent his medals and awards.  

His request to receive awards will be handled administratively.

APPLICANT STATES:  There was no proof that he used marijuana and none that he was a homosexual.  He went AWOL (absent without leave) because he was told by his company commander that he would be imprisoned at Fort Leavenworth, Kansas, for being a homosexual.  He surrendered at the Naval Station, San Diego.  He was held for 2 weeks.  He does not understand why the Navy kept him so long.  They eventually released him on his own recognizance.  After he returned to the base he was again harassed by the captain and threatened with prison for being gay.  Although he is not gay he thinks the Army's policy of "Don't ask, don't tell" is a good idea because it allows everyone the opportunity to serve their country.

He also states that the discharge should be upgraded because he had average conduct and efficiency ratings, and because personal problems impaired his ability to serve and due to clemency.

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

The applicant enlisted and entered active duty on 28 June 1984.  He completed training as a supply specialist and was stationed in Germany where he was advanced to specialist (E-4).  He returned to the United States and reenlisted at Fort Bragg, North Carolina on 22 January 1987.   

Notwithstanding a 30 July 1987 nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for using marijuana and 13 days AWOL, he was awarded the Good Conduct Medal (first award) on 26 September 1987.

The applicant was AWOL from 3 August 1987 to 27 January 1988.  He was separated with a discharge under other than honorable conditions on 8 April 1988 under the provisions of Army Regulation 635-200, chapter 10.  The documentation normally associated with the discharge process is not contained in the available records.  He received no assigned conduct and efficiency ratings during his entire period of service.

The applicant's DD Form 214 (Certificate of Release or Discharge from active Duty) and his DA Form 2-1 (Personnel Qualification Record) list his awards as the Good Conduct Medal, the Army Service Ribbon, The Overseas Service Ribbon, the Marksman Qualification Badge with Rifle Bar and the Expert Qualification Badge with Grenade Bar.

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 submit a request for discharge for 
the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

The Manual for Courts Martial, Table of Maximum Punishments shows that a punitive discharge is authorized for any AWOL of more that 30 days.

On 16 January 1996 and 21 May 2002 the Army Discharge Review Board denied the applicant's requests to upgrade his discharge.

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.  There is no evidence to substantiate either of the applicant's contentions, that he was harassed for being a suspected homosexual or that he did not use marijuana.  Furthermore, he has offered no rationale to show that AWOL was a necessary or even reasonable response to the alleged harassment.

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

3.  The applicant's overall record of service does not outweigh the offense for which he apparently requested discharge for the good of the service in lieu of trial by court-martial.  He has presented no convincing justification for clemency. 

4.  In view of the foregoing, there is no basis for granting the applicant's request.
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.

5.  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.

NOTE:  The Army Review Board Agency, Support Division, St. Louis will be asked to issue/reissue the medal sets for the applicant's authorized awards.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__MKP __  __CJP __  __HBO__  DENY APPLICATION

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

INDEX

CASE ID	AR AR2002073642	
SUFFIX		
RECON		
DATE BOARDED	20020829	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19820408	
DISCHARGE AUTHORITY	AR635-200, ch 10 .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC	
REVIEW AUTHORITY	A70.00	
ISSUES         1.	A92.01	
2.	A93.07	
3.		
4.		
5.		
6.