MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           21 May 2002
	DOCKET NUMBER:   AR2001063263

	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. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Thomas Lanyi		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES:  In effect, that prior to going absent without leave (AWOL) he went through his chain-of-command to obtain permission to leave, but was denied.  He went AWOL, because his son was ill.  While he was AWOL his son died.  When he returned to duty from AWOL he could not adjust mentally.  He submits no evidence to support his request.

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

He enlisted in the Regular Army on 3 January 1975.  He completed basic training but did not complete advanced individual training; therefore, he was not awarded a military occupational specialty.

On 12 February 1975, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for absenting himself from his place of duty without authority.  His punishment was forfeiture of $30.00 per month for one month, and restriction and extra duty for seven days.  He did not appeal the punishment.

On 9 April 1975, it was noted that the applicant's unit had not been able to contact him.  The applicant's father reported that the applicant had gotten married, moved to Houston, Texas, and then moved back to Beaumont, Texas, however he (the father) was unable to locate the applicant.

On 15 August 1975, the applicant's mother was informed that her son, the applicant, had been dropped from the rolls as a deserter.  The applicant's commander offered that she was free to contact him if she had any questions or information.

On 22 January 1976, court-martial charges were preferred against the applicant, charging that on or about 15 July 1975, absented himself from his unit without authority and did remain so absent until on or about 14 January 1976.

On 22 January 1976, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of an under other than honorable conditions discharge and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement in his own behalf.

On 20 January 1976, the applicant completed a separation physical examination for the purpose of a chapter 10 discharge.  He was found qualified for separation.

On 27 January 1976, his company commander recommended approval of the applicant's request for separation and further recommended that he be provided an Undesirable Discharge Certificate.

On 2 February 1976, the appropriate authority approved the request and directed the applicant receive an undesirable discharge.

On 3 May 1976, the applicant received an undesirable discharge, in pay grade  E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  He had completed 10 months of creditable active service and had 183 days of lost time and 102 days of excess leave. 

Army Regulation 635-200, in effect at the time, 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.

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 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.

2.  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.

3.  The applicant states that he went AWOL to attend to a sick son who then died.  However, the Board concludes from the evidence available that the applicant made no mention of his tragic loss to his leadership upon his return from AWOL.  His company commander at the time contacted both his parents and neither provided him any information to explain the reason for the applicant's misconduct.  The chapter 10 discharge packet reflects that after meeting counsel, the applicant chose not to make a statement on his own behalf.  The Board must conclude that the applicant's commander, using the information available to him at that time, properly considered and accepted the applicant's request for discharge.

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

__jlp_____  ___bje__  ___tl ____  DENY APPLICATION

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

INDEX

CASE ID	AR2001063263	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR 625-200, ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.