MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            26 May 1999                            
	DOCKET NUMBER:   AR1999022608

	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. Loren G. Harrell		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Barbara J. Ellis		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 her discharge under other than honorable conditions be upgraded to honorable.  

APPLICANT STATES:  In effect, that at the time of her discharge she was under a lot of pressure and had serious family problems.  She contends that while she was stationed in Germany her three minor children were residing with her ill mother.  She states that her sister had a nervous breakdown and was also under the care of her mother and that her grandmother passed away leaving her mother to care for an elderly retarded relative.  She claims that as a result of these family problems she had her first nervous breakdown and was sent home.  In support of her application, she submits a letter of explanation and six character reference letters; however, the Board noted that five of the letters were authored by the same individual.  She also provided a copy of a police report dated
26 February 1998, copies of nonjudicial punishments imposed on 9 February 1976 and 23 January 1976 and a copy of a special court-martial convened on
20 August 1975.      

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

The applicant enlisted on 28 November 1973 for a period of 3 years.  She successfully completed training and was transferred to Germany for duty as a personnel management specialist on 10 June 1974.  She returned to the United States for assignment at Fort Benjamin Harrison, Indiana, on 13 December 1974.

On 20 August 1975, while assigned to Fort Benjamin Harrison, Indiana, the applicant was convicted by special court-martial of two specifications of disrespectful behavior toward a superior commissioned officer and using disrespectful language toward a superior noncommissioned officer.  She was sentenced to be reduced to pay grade E-1, to forfeit $100 a month for 6 months and 45 days of restriction and extra duty.  On 17 September 1975, the convening authority disapproved one specification of disrespectful behavior toward a superior commissioned officer.

On 23 January 1976, while assigned to Fort Dix, New Jersey, nonjudicial punishment (NJP) was imposed against the applicant for failure to go at the time prescribed to her appointed place of duty.  Her punishment consisted of a forfeiture of pay. 

On 9 February 1976, while assigned to Fort Dix, New Jersey, NJP was again imposed against the applicant for being AWOL from 3 February 1976 to
4 February 1976 and failure to go at the time prescribed to her appointed place of duty.  Her punishment consisted of a forfeiture of pay. 

The applicant’s personnel records indicate that she went AWOL from 19 April 1976 to 27 May 1976; from 14 June 1976 to 15 June 1976; from 16 June 1976 to 22 June 1976; and from 9 July 1976 to 16 September 1976.

The facts and circumstances surrounding the applicant’s discharge are not contained in the available records; however, her records show that she was discharged under other than honorable conditions on 29 October 1976, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  She had served 2 years, 7 months and 13 days of total active service with 109 days of lost time due to AWOL.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board within its 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 is authorized, 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.  In the absence of evidence to the contrary, it must be presumed that 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 an in conformance with applicable regulations.

2.  While the Board is empathetic, the applicant’s stated reasons of family problems are not sufficiently mitigating to warrant an upgrade of her discharge.  Also, the applicant’s disciplinary record (one special court-martial and two NJP’s), combined with her numerous AWOL periods, does not warrant equitable relief.  

3.  The character of the discharge is commensurate with the applicant’s overall record of military service. 

4.  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 the aforementioned 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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

MDM____  AAO____  BJE_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022608	
SUFFIX		
RECON		
DATE BOARDED	19990526	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19761029	
DISCHARGE AUTHORITY	AR 635-200 CHAPTER 10	
DISCHARGE REASON	IN LIEU OF TRIAL BY COURT-MARTIAL	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	189	
2.		
3.		
4.		
5.		
6.