MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE: 8 July 1999
	DOCKET NUMBER:  

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. June Haijar		Chairperson	
	Mr. Raymond V. O'Connor, Jr. 		Member	
	Mr. Roger W. Able		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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge, and that the reason for his discharge be changed from an administrative discharge due to conduct triable by court-martial to convenience of the government.  He has also requested that his reenlistment eligibility (RE) code RE-3B be changed to RE-1.

APPLICANT STATES:  In effect, that he went on emergency leave for 15 days to attend the funeral of a family member, and while on leave his grandmother passed away.  His mother was devastated by the grandmother's death.  Since he was the oldest child, he felt that he needed to be with his mother.  He called his unit and asked to be put on leave for a few more days and was denied.  When he found out that he had been reported as being absent without leave (AWOL) he turned himself into military authorities at Fort Sill, Oklahoma.

COUNSEL STATES:  The applicant maintains that his discharge is unjust in that family problems diminished his ability to serve.  The applicant was granted leave to attend the funeral of a family member and while on leave, his grandmother passed away.  The devastation that he felt at the time compelled him not to return to his unit.

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

That on 22 January 1979, he enlisted in the Regular Army for a period of 3 years, airborne training and training in military occupational specialty (MOS) 16R (Air Defense Artillery Short Range Gunnery Crewman).  He completed basic and advanced individual training and waived airborne training.  On 5 June 1979, he was assigned to Germany.

On 24 March 1980, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice was imposed against the applicant for wrongfully having in his possession an undetermined amount of a controlled substance, marijuana residue on 
1 February 1980.  His punishment included reduction from pay grade E-3 to pay grade E-1, forfeiture of pay, and 45 days extra duty and restriction.

An Army Council of Review Boards Case Report and Directive, dated 9 September 1982, indicates that on 30 May 1980, the applicant "underwent surgery on his left foot for a long-standing deformity.  His initial 90 day T-3 profile was extended for another 90 days on 
25 August 1980.  Three days later he went on ordinary leave for 15 days."  

On 12 September 1980, he failed to return.  He remained AWOL until he surrendered to military authorities at St. Louis, Missouri, on 13 November 1980.  On 14 November 1980, he elected not to receive a medical examination for separation.  He was transferred to the Personnel Control Facility at Fort Sill, Oklahoma. 

On 1 December 1980, court-martial charges were preferred for the period of AWOL from 
12 September - 12 November 1980.  On 2 December 1980, he consulted with legal counsel and requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.  He was advised that the offense for which he was charged could lead to a UOTHC discharge.  He stated that he understood the ramifications of a UOTHC discharge, and he declined to submit a statement in his own behalf.

On 16 December 1980, the applicant’s unit commander recommended separation with a UOTHC discharge.  On 22 December 1980, competent authority approved his request.  

On 8 January 1981, he was separated with a UOTHC discharge for the good of the service-in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.  He had completed 1 year, 9 months, and 14 days of active military service and he had 62 days lost time due to being AWOL. 

The record indicates that the Army Discharge Review Board denied the applicant an upgrade of his discharge on 9 September 1982.

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 was authorized, a UOTHC discharge was then considered appropriate.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE Code RE-3B indicates lost time for which waiver for reenlistment would need to be obtained.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  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.

2.  The Board empathizes with the applicant and in the loss of his family members.  However, the Board determined that there were other legitimate avenues he could have pursued in resolving his personal and family losses and other problems in lieu of going AWOL.  

3.  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.  There is no indication that the request was made under coercion or duress.

4.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

5.  The applicant was separated and assigned a reentry code in accordance with regulations then in effect.  In view of the circumstances in this case, the assigned reentry eligibility codes were and still are appropriate.  

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

JH______  RVO____  RWA____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021647	
SUFFIX		
RECON		
DATE BOARDED	19990708	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19810108	
DISCHARGE AUTHORITY	AR635-200, CHAPTER 10  	
DISCHARGE REASON	Administrative discharge conduct triable by Court-Martial.	
BOARD DECISION	(NC)	
REVIEW AUTHORITY	Director	
ISSUES         1.	A70.00	
2.	A92.23	
3.	A93.09	
4.	A95.00	
5.		
6.