MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 May 2000
	DOCKET NUMBER:   AR1999034282

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Ernest W. Lutz, Jr.		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 honorable.

APPLICANT STATES:  That at the time he was under considerable distress due to his mother’s illness and he requested to be reassigned closer to home due to hardship and his request was denied.  He further states that he was forced to go AWOL in order to be with his mother in her time of need.  He also states that his mother subsequently died as a result of her illness.  In support of his application he submits a copy of his mother’s death certificate showing that she died on 18 November 1989.

COUNSEL CONTENDS:  In effect, that while his infractions did constitute misconduct, he is not a criminal and persons in similar situations have been afforded nonjudicial punishment (NJP) and fined.  Consequently, the Board should consider the mitigating and extenuating circumstances that existed in the applicant’s case and upgrade his discharge.

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

He enlisted in Nashville, Tennessee on 12 June 1977 for a period of 4 years, training as an armor crewman, assignment to Europe, and a cash enlistment bonus of $2,500.00.  At the time of his enlistment he indicated on his contract that his mother resided in Nashville and that he had three other siblings; two of which were ages 24 and 15 and resided in Nashville.  The other sibling was 22 years of age and was also in the Army.

He successfully completed his training at Fort Knox, Kentucky and was transferred to Germany on 21 September 1977.  He was promoted to the pay grade of E-3 on 13 February 1978.

On 29 March 1978 NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay (suspended for 45 days), extra duty and restriction.

On 26 July 1978 NJP was imposed against him for being negligent in the performance of his duties while on guard duty.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, extra duty and restriction.

On 2 July 1979 NJP was imposed against him for three specifications of disobeying a lawful order from a superior NCO and for the wrongful use of provoking language towards a superior NCO.  His punishment consisted of a forfeiture of pay and 15 days correctional custody (both suspended).

On 14 September 1979 NJP was imposed against him for being disrespectful in language towards a superior NCO.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay and restriction.

The applicant completed his tour in Germany and was transferred to Fort Riley, Kansas on 2 November 1979.

On 2 April 1980, while at Fort Riley, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay (suspended), restriction and extra duty.

The applicant went AWOL on 21 May and remained absent until he was returned to military control on 20 June 1980.  He again went AWOL on 4 July and remained absent until he surrendered to military authorities at Fort Knox on 6 September 1980.

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214) which shows that he was discharged under other than honorable conditions on 6 November 1980 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 3 years, 1 month, and 23 days of total active service and had 94 days of lost time due to AWOL.

A review of the applicant’s records fails to reveal any indication that the applicant applied for a compassionate reassignment from Fort Riley.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within 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 the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge.  A discharge under other than honorable conditions is normally considered appropriate and there are no provisions for an automatic upgrade of such a 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.  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 and in conformance with applicable regulations.

2.  Accordingly, it must be presumed that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  A request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned.  Therefore, it appears that he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

4.  The applicant’s contentions have been noted by the Board; however, they are not supported by the evidence submitted with his application or the evidence of record.  Accordingly, they are not sufficiently mitigating when compared to his extensive absences and his otherwise undistinguished record of service.

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

___ewl___  ___rvo __  ___jhk __  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999034282	
SUFFIX		
RECON		
DATE BOARDED	2000/05/03	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1980/11/06	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.