MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:  27 April 2000
	DOCKET NUMBER:   AR1999031443

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Kenneth L. Wright		Member	
	Mr. Thomas A. Pagan		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 to under honorable conditions.

APPLICANT STATES:  That his discharge should have been automatically reviewed and upgraded to under honorable conditions.

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

He enlisted and entered active duty on 30 January 1979.  He completed training as an infantryman and was assigned to Fort Riley, Kansas.  A commanders report notes that he was AWOL for 3 days in September 1980 and for 7 days in March 1981 and was punished under Article 15, UCMJ for these offenses.

The applicant was AWOL again on 22 June 1981 and was dropped from the rolls as a deserter on 21 July 1981.  He was apprehended by civilian authorities on 18 November 1981 for shoplifting and was returned to military control on 24 November 1981.

On 10 December 1981 charges were preferred for the AWOL offense.  A 10 December 1981 commander’s summary notes that the applicant wants out of the Army and does not seem restorable as a soldier.  He can no longer cope with the demands of the military.

After consulting with counsel on 12 December 1981, the applicant requested discharge in lieu of trial by court-martial that might result in a dishonorable discharge and 1 year confinement.  In his request he acknowledged that he may be discharged under other than honorable conditions and might be deprived of many or all Federal and State veteran’s benefits.  He also acknowledged that there is no provision for automatic reviewing or upgrading of any discharge.  He submitted a statement in his behalf.

In the applicant’s attached statement he noted that he was home sick and he was denied leave.  As the oldest son he needed to see his sick mother and help with the younger children as he always had.  He had lost his motivation and morale when the unit starting changing.  He only joined the Army because he lost his other job.

The request for discharge was reviewed by the command judge advocate and was determined to be legally sufficient for processing.  On 22 December 1981 the separation authority, a major general, approved the request and directed issuance of an under other than honorable conditions discharge.

Effective 20 January 1982 the applicant was separated under authority of AR 635-200, chapter 10.  He had 2 years, 6 months, and 5 days creditable service and 165 days lost time.

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.  A discharge under other than honorable conditions is normally considered appropriate.

There is no indication in the available record to indicate that he requested a discharge review from the Army Discharge Review Board within the established 15 year time limit.

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 was advised of the effects of a discharge under other than honorable conditions and that there were no provisions for an automatic upgrade. The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

2.  The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial and the punitive discharge he might receive. There is no indication that the request was made under coercion or duress.

3.  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.

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

__EB__  __KW___  __TP___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031443	
SUFFIX		
RECON		
DATE BOARDED	20000427	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19820120	
DISCHARGE AUTHORITY	AR 635-200, CH 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	A71.00	
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.