MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 September 2003                   
	DOCKET NUMBER:   AR2003083705

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. Christopher J. Prosser		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 under other than honorable conditions (UOTHC) discharge be changed to an entry-level separation (ELS). 

APPLICANT STATES:  That he believes he should have received an ELS  because he was still in a training status and he had not served 180 days in the military.

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

On 19 July 1982, the applicant enlisted in the Delayed Entry Program (DEP).  On 1 October 1982, he was separated from the DEP and he enlisted in the Regular Army for 4 years and training in military occupational specialty (MOS) 63B (Light Wheel Vehicle/Power Generation Mechanic).  

On or about 1 October 1982, the applicant reported to Fort Jackson, South Carolina, for One Station Unit Training.  On 6 March 1983, the applicant left his unit in an absent without leave (AWOL) status until he was apprehended and turned over to military authorities at Fort Knox, Kentucky, on 19 May 1985.

On 24 May 1985, court-martial charges were preferred against the applicant for 
the above period of AWOL.

On 28 May 1985, the applicant consulted with legal counsel and requested discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of court-martial.  He was advised that he could receive a UOTHC discharge.  He authenticated a statement with his signature acknowledging he understood the ramifications and effects of receiving a UOTHC discharge.  He did not submit a statement in his own behalf.  

On 29 May 1985, both the applicant's unit and intermediate commanders recommended approval of the applicant's request.  On 6 June 1985, the approval authority approved the applicant's request for discharge and directed that he be separated with a UOTHC discharge in pay grade E-1, which was the highest pay grade that he achieved.  

The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that, on 1 July 1982, he was separated under the provisions of chapter 10, Army Regulation 635-200 with a UOTHC discharge, for the good of the service-in lieu of court-martial.  He had completed 6 months and 17 days of active military service and he has 806 days of lost time.

There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge under 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 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 was authorized, a UOTHC discharge was considered appropriate.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provides for the separation of personnel during the initial 180 days of service while still in an entry-level status.  The policy applies to soldiers who have demonstrated that they are not qualified for retention because they cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline.  These soldiers are given an uncharacterized discharge and, when discharged under the provisions of chapter 11, are discharged by reason of entry-level status performance and conduct.  Only in certain meritorious cases approved by the Secretary of the Army are they entitled to an honorable discharge.  Nothing in chapter 11 precludes separation under another provision of this regulation when such separation is warranted.  Thus, a soldier who commits a court-martial offense may be so charged and may submit a request for separation under chapter 10.

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, to avoid trial by court-martial was administratively correct and in conformance with applicable regulations. 

3.  Soldiers may be separated in an entry level status when they have served less than 180 days and it is clearly demonstrated that they are unable to meet the minimum training requirements; for lack of motivation; failure to adapt to military life; and for unsatisfactory performance and conduct.  However, nothing precludes a commander from separating an entry-level soldier under any other applicable chapter of the separation regulation.  Clearly, the applicant's lengthy period of AWOL warranted the referral of court-martial charges.

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

__sk____  __cjp___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2003083705	
SUFFIX		
RECON		
DATE BOARDED	20030911	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19850701	
DISCHARGE AUTHORITY	AR 635-200, Chap 10.  .  .  .  .  	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.