MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 February 2002
	DOCKET NUMBER:   AR2001062806

	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	
	Ms. Celia L. Adolphi		Member	
	Mr. John T. Meixell		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 and that he be given a Reentry (RE) Code that will allow him the option to enlist again.

APPLICANT STATES:  That he is entitled to an honorable discharge and the option to enlist again because at the time he went absent without leave (AWOL), his commander forbade him to act in the best interest of his family.  He further states that his wife needed transportation to go to the doctor during a high-risk pregnancy and he was ordered to leave her without transportation for a period of 33 days.  He goes on to state that he went AWOL to care for his unborn son.

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

He initially enlisted in the Alabama Army National Guard (ALARNG) on 12 February 1996, and served with the ALARNG until he enlisted in the Regular Army on 29 May 1997, for a period of 3 years and training as a unit supply specialist.  His records indicate that he was 20 years of age and single when he enlisted.  

He completed his advanced individual training at Fort Lee, Virginia and was transferred to Fort Campbell, Kentucky, where he updated his record of emergency data and indicated that he was still single on 1 August 1997. 

On 3 August 1998, he went AWOL and remained absent until he was returned to military control on 28 August 1998, and charges were preferred against him.

On 13 October 1998, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request, he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him, or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He further elected not to submit a statement in his own behalf.

The appropriate authority (a major general) approved his request on 26 October 1998, and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 3 November 1998, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 4 months and 10 days of active service during his current enlistment and had 25 days of lost time due to AWOL.

The applicant appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to a general discharge on 4 October 2001.  He provided no explanation with his appeal and the ADRB, after reviewing the facts and circumstances of his case, determined that he had been properly discharged and that his service was properly characterized.  The ADRB denied his appeal on 14 December 2001. 

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.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate and there was not then, nor is there now, any 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.  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, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, 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.  In doing so he admitted guilt to the charges against him.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the length of his absence as well as his otherwise undistinguished record of service. 

4.  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.
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

___jm___  __rvo ___  __cla____  DENY APPLICATION

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

INDEX

CASE ID	AR2001062806	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/02/28	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1998/11/03	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.