MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             9 September 1999
	DOCKET NUMBER:    AR1999029487

	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	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Erin J. Olmes		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Christopher J. Prosser		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 (UOHC) discharge be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that his concern over the illness of his grandmother and the resultant state of mind of his mother were the reasons for his going AWOL; that his age and immaturity at the time combined with his delirium over the family situation contributed to his misconduct; that his mother began to experience difficulty with the law which impacted his state of mind; and the Army’s denial of his leave request caused him to depart AWOL.  In addition, the applicant enclosed the following documents in support of his case:  a post care report on his grandmother, dated 19 October 1991; a death certificate on his grandmother documenting her date of death as 18 November 1991; copies of traffic accident police reports pertaining to his mother; a statement from his employer; and a statement from the American Cancer Society attesting to his volunteer service.

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

On 3 October 1989, the applicant entered the Regular Army for 4 years at the age of 19.  He successfully completed basic training at Fort Bliss, Texas and advanced individual training (AIT) at Fort Sill, Oklahoma.  Upon completion of AIT the applicant was awarded military occupational specialty 13F (Fire Support Specialist) and assigned to Fort Polk, Louisiana for his first permanent duty station.

The applicant’s record shows that he completed just over a year of active service and the highest rank he attained while on active duty was private/E-2.  There are no documented acts of valor, significant achievement, or service warranting special recognition contained in the record.  However, the record does show a history of AWOL related misconduct.

On 22 August 1990, the applicant departed AWOL from his unit at Fort Polk and remained away 11 days until 31 August 1990.  While there is no record of nonjudicial punishment (NJP) contained in the applicant’s record, there is an indication that the applicant was reduced to the rank to private/E-1 on 
14 September 1990.  The record also contains a DA Form 4187 (Personnel Action) form which documents that the applicant was reduced as a result of NJP. This form does not specify the specific offense for which the applicant received the NJP; however, it was most likely the result of his August 1990 AWOL offense.

On 17 September 1990, the applicant again departed AWOL from his unit at Fort Polk, Louisiana, he was dropped from the rolls of his unit as a deserter on 
18 October 1990, and remained away for 101 days.  The applicant returned to military control at the Lansing Michigan Recruiting Battalion on 27 December 1990 and was assigned to the Personnel Control Facility at Fort Knox, Kentucky.

On 9 January 1991, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violation of Article 86 of the UCMJ by being AWOL from 17 September to 27 December 1990.  On 11 January 1991, the applicant, after consulting with counsel and being advised of the basis for the contemplated trial by court-martial, voluntarily requested discharge for the good of the service-in lieu of trial by court-martial, under the provisions of Chapter 10 of AR 635-200.  

The applicant, in complying with the procedures for his voluntary request for discharge and after being fully advised of the impact of his action by counsel, completed a statement in which he attested to the fact that his request was being made of his own free will; that he had not been subjected to coercion whatsoever by any person; and that he had been advised by counsel of the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge UOHC if the request were approved, and of the procedures and rights available to him.  He also acknowledged that he understood the elements of the offense for which he was charged; and that he was guilty of the charges against him, or of a lesser included offense, which authorized the imposition of a bad conduct or dishonorable discharge.  The applicant also stated his understanding that he would be deprived of many or all Army benefits; that he may be ineligible for benefits administered by the Department of Veteran Affairs; and that he may be deprived of veterans benefits under state and federal law.  Finally, the applicant indicated that, under no circumstances, did he desire to perform further military service.  The applicant also elected not to submit a statement in connection with his discharge processing.

On 31 January 1991 the appropriate authority approved the applicant's request for separation and directed issuance of a discharge UOHC.  Accordingly, on 
6 March 1991 the applicant was discharged after completing 1 year, 1 month, and 14 days of active military service, and having had accrued 112 days of time lost due to AWOL.

The supporting documents submitted by the applicant show that his grandmother was in poor health upon her departure from the hospital on 19 October 1991, as a result of old age, and that she subsequently died on 18 November 1991 at age 90.  The police traffic reports enclosed show that his mother was involved in two traffic accidents on 31 July 1991, approximately 3 months prior to his grandmother’s death.  There is no indication in the evidence of record that the applicant ever raised these issues as mitigating factors prior to or during the discharge process.  The record also lacks any evidence to show that the applicant sought assistance with his family problems from either members of the chain of command or any other support agency.  Finally, the applicant submitted character references from his current employer and from the American Cancer Society which attest to his post service employment history.
On 22 November 1995, as a result of a records review, the Army Discharge Review Board denied the applicant’s request for an upgrade to his discharge and found that his discharge process was proper and equitable in all respects.  On 
11 August 1998, the applicant personally appeared before the ADRB to again request an upgrade to his discharge.  The ADRB again denied the applicant’s request for an upgrade and found that the discharge process was proper and equitable in all respects.

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 are preferred, submit a request for discharge for the good of the service in lieu of trial by court martial.  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.  The Board noted the applicant’ s contentions; however, after carefully examining the applicant’s record of service for the period of enlistment under review, found no basis for relief.  The Board further found no evidence that the applicant was any less mature than other soldiers of the same age who successfully completed military service.  While the Board is empathetic with the family problems the applicant was experiencing at the time, this did not mitigate his misconduct sufficiently to warrant relief.  The Board determined that the applicant had many legitimate avenues through which to obtain assistance or relief with his family problems, without committing the misconduct which led to the separation action under review.  Finally, while the applicant’s post service employment record and volunteer work is admirable, they do not provide a basis for relief.

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The Board noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.
3.  In order to justify a correction of a military record the applicant must show to the 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.

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

___eo___  __inw___  ___cjp___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999029487	
SUFFIX		
RECON		
DATE BOARDED	1999/09/09	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1991/03/06	
DISCHARGE AUTHORITY	AR 635-200, C10 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.00	
2.  835	A93.01	
3.  841	A93.07	
4.		
5.		
6.