MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            30 May 2002                  
	DOCKET NUMBER:    AR2001063479

	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	
	Ms.	Antoinette Jones-Farley		Analyst	

The following members, a quorum, were present:

	Mr. 	Raymond V. O’Connor, Jr.		Chairperson	
	Mr. 	John P. Infante		Member	
	Ms.	Paula Mokulis		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 essence, that his under other than honorable conditions (UOTHC) discharge be reviewed and upgraded to an honorable discharge.  

APPLICANT STATES:  In effect, that at the time of his reenlistment at Fort Bliss, Texas in January 1980, he received an honorable discharge.  He was then stationed at Fort Lewis, Washington in January 1981.  He states that he requested leave in order to attend his father-in-laws funeral, but permission was denied.  He points out that after his denial, he intervened when a friend was caught with “a piece of marijuana.”  He alleges that his command, cut orders to send him to the brig in what he refers to as “Casual Custody” and he was not charged with any offense. The applicant states in both of his applications submitted to the Board dated 9 September and 12 December 2001, that his desertion was due to mitigating factors of harassment and unprovoked duress from his Commanding Officer (CO) at Fort Lewis, Washington.  

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

On 5 July 1977 he enlisted in the Regular Army (RA) for a period of 3 years and training in military occupational specialty (MOS) 5B10 (Radio Operator).  On 
19 October 1977, he was assigned to Korea.  On 1 November 1978, he returned from Korea and was assigned to Fort Bliss, Texas for duty.  On 15 January 1980, he was honorably separated and immediately reenlisted on 16 January 1980.  On 15 April 1980, he was reassigned to Germany for duty as a Radio Operator.  

On 17 April 1980, he was further assigned to Fort Gordon, Georgia for Advanced Individual Training in MOS 31M.  He was then reassigned to Fort Lewis, Washington for duty as a Radio Operator.  

On 20 June 1980, the applicant received non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty.  His punishment included reduction to pay grade E-3, forfeiture of $100 dollars pay per month for 1 month (suspended for 
30 days). 

His records show that he was AWOL, from 7 January thru 11 January 1981 and from 19 January 1981, until he voluntarily surrendered to military control at Fort Dix, New Jersey on 24 August 1981. 

On 27 August 1981, the applicant was charged with the above AWOL offenses.  During this process he stated he went AWOL because he could not adjust to the standards at his unit.  He stated he was needed at home to support his family and was being lied to.  He had asked for a chapter 13 and was told that he would receive it.  He was given 7 days confinement at the Correctional Custody Facility (CCF) for disobeying a lawful order, but had committed no offense. He states that he was released from CCF after 4 days, because he was being harassed by the cadre.  He further states, that he was told that his chapter 13 was being processed.  He had repeatedly requested a chapter 13 and there are no records to show any action was taken.  

A mental status evaluation was conducted and he was cleared for administrative separation.  On 28 August 1981, he consulted with legal counsel and voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  In this request he stated that he understood that the offense could result in a punitive discharge and that he understood that he would receive a UOTHC discharge.  He declined to submit a statement in his own behalf.  On 8 September 1981, the separation authority approved his separation and directed issuance of a UOTHC discharge. 

On 24 September 1981, he was separated with a UOTHC discharge by reason of an administrative discharge-conduct for triable by court-martial, under the provisions of chapter 10, Army Regulation 635-200.  He was credited with 
3 year, 7 months and 10 days active service and 222 days of lost time.

On 21 March 1985, the Army Discharge Review Board denied his request for upgrade of his discharge.

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 a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Although an honorable or a general discharge is authorized, a UOTHC discharge is normally considered appropriate.

Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier

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.  The applicant claims he was promised that his request for a chapter
13 discharge would be processed.  However, separation under Army Regulation 635-200, chapter 13 is not a voluntary process. 

3.  While the Board has taken cognizance of the applicant’s contention that he went AWOL because he felt he was under duress by his CO, he had legitimate avenues through which to obtain assistance or relief, without committing the offenses which led to the separation action under review.

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

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

__RVO__  ___JPI __  ___PM __  DENY APPLICATION

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

INDEX

CASE ID	AR2001063479	
SUFFIX		
RECON		
DATE BOARDED	20020530	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1980/02/22	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	A94.07	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	A123.01	
2.		
3.		
4.		
5.		
6.