MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 August 2000
	DOCKET NUMBER:   AR1999034318

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		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 upgraded.

APPLICANT STATES:  In effect, that while being legally counseled in regard to a divorce action, he was advised by counsel to sign divorce papers, but instead chose to go home, in an absent without leave (AWOL) status and fix the problem. He indicates that he has shamed his country and himself and would like to be forgiven.  In support of his application, he submits the enclosed expanded personal statement, a letter from his pastor, his attorney, and two neighbors that attest to his good character and his post service good citizenship. In addition, he submits the enclosed work evaluation from an employer, both a local police and Federal Bureau of Investigation report, and a ministerial license.

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

On 12 March 1976, he was enlisted in the Regular Army for 4 years, in the rank and pay grade of Specialist/E-4 (SP4).  At the time of this enlistment he had already completed 2 years, 8 months, and 29 days of honorable active duty service in the United States Navy.  On 28 February 1975, he received a complete and unconditional separation from the Navy when he was honorably released from active duty, in the pay grade of E-4.  

The applicant successfully completed Army basic training and advanced individual training (AIT) at Fort Leonard Wood, Missouri.  Upon completion of AIT he was awarded military occupational specialty 62B (Engineer Equipment Mechanic).  

There are no documented acts of valor, significant achievement, or service warranting special recognition recorded in the applicant’s Army service record.  However, there is an extensive disciplinary history recorded.  This includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on three separate occasions.

On 13 July 1976, prior to reporting to his first permanent duty station, the applicant went AWOL.  He returned to military control at the Special Processing Detachment, Fort Knox, Kentucky, on 16 August 1976.  On 27 August 1976, he accepted NJP for this 34 day period of AWOL and his punishment included a forfeiture of $85.00 and 14 days of restriction and extra duty.  At the completion of rehabilitation, the applicant was assigned to Fort Lewis, Washington where he arrived for duty in September 1976.  

On 3 October 1977, he accepted NJP for willfully disobeying an order from and being disrespectful to a superior noncommissioned officer in the execution of his duties.  His punishment for this offense included a suspended reduction to the rank and pay grade of Private First Class/E-3 (PFC), a forfeiture of $50.00, and 14 days of extra duty.

In December 1977, the applicant was reassigned to overseas duty in Korea and he arrived there for duty in January 1978.  On 12 June 1978, he was promoted to the rank of Sergeant (SGT).  He completed his tour in Korea and was reassigned to Fort Stewart, Georgia where he arrived for duty in January 1979.  

On 30 January 1979, he accepted NJP for being AWOL from 8 to 26 January 1979.  He was punished with a forfeiture of $125.00 and 14 days of restriction and extra duty.  

On 21 January 1980, the applicant again departed AWOL from his unit at Fort Stewart and on 19 February 1980, he was dropped from the rolls of his unit as a deserter.  He did not return to military control until 18 April 1980 when he surrendered to military authorities, at which time he was assigned to the Personnel Control Facility, Fort Knox, Kentucky.

On 25 April 1980, a court-martial charge was preferred against the applicant for a violation of Article 86 of the UCMJ by being AWOL from 21 January to 18 April 1980.  Based on this charge being preferred against him, the applicant consulted legal counsel.  He was advised by counsel of the basis for his contemplated trial by court-martial and of the maximum permissible punishment authorized under the UCMJ.  He was further advised of the possible consequences of an UOTHC discharge and of the procedural rights available to him in connection with the action. 

On 29 April 1980, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  In his request, the applicant acknowledged his guilt of the offense with which he was charged and stated that his request for discharge was made of his own free will and that he had not been subjected to any coercion.  In addition, he attested to his understanding of the effects of his receiving an UOTHC and that his receiving this type of discharge could result in his being deprived of many or all Army benefits and of Federal and State veterans benefits.

On 15 May 1980, the appropriate authority approved the applicant’s request for discharge and directed that he receive an under other than honorable conditions discharge and that he be reduced to the lowest enlisted rank.  

Accordingly, on 11 June 1980, the applicant was discharged after completing 
3 years, 10 months, and 12 days of creditable active military service on his current enlistment and having had accrued 140 days of time lost due to AWOL.  

On 22 April 1982, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge and found the discharge 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 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.  An UOTHC discharge is normally considered appropriate for members separating under these provisions. 

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 contentions of the applicant and the strong support provided by members of his community and wishes to congratulate him on his excellent post service conduct and on his contributions to his community.  In addition, the Board wishes to acknowledge and recognize the applicant’s prior honorable Navy service. 

2.  The record shows that the applicant possesses a complete and unconditional honorable separation from the United States Navy, which carries with it entitlement to veterans benefits.  Given this entitlement as a result of his honorable Navy service, the Boards finds no equity or injustice issues that could be used as a basis to upgrade the discharge under review.

3.  The evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and after consulting with defense counsel, he voluntarily requested separation in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense.  

4.  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.  Further, the Board noted characterization of service for this type of discharge is normally UOTHC and the applicant was aware of that prior to his voluntarily requesting discharge.  
5.  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.

6.  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____  ___ja____  ___reb __  DENY APPLICATION

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

INDEX

CASE ID	AR1999034318	
SUFFIX		
RECON		
DATE BOARDED	2000/08/08	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1980/06/11	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	In Lieu of Court-Martial 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.