MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            16 May 2002
	DOCKET NUMBER:    AR2001065178

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Roger W. Able		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:  That his under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

APPLICANT STATES:  That he believes he was not given a fair chance to defend himself or the type of discharge he received.  The applicant submitted a two-page letter in his own behalf explaining why he felt he had to leave the military.  

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

He enlisted in the Regular Army on 21 September 1978 for a period of 4 years.  He enlisted for training in military occupational specialty (MOS) 11C, Indirect Fire Infantryman, and assignment to Europe.  Following completion of all military training, the applicant was awarded MOS 11C and was assigned to Germany as his first permanent assignment. 

On 1 February 1981, the applicant was transferred to Fort Benning, Georgia.  On 14 April 1982, he reenlisted in the Army for a period of 3 years.  At the time of reenlistment, the applicant had attained the rank of specialist/E-4 and was credited with 3 years, 6 months, and 22 days of active military service.

On 18 March 1983, the applicant was once again assigned to Germany.  On 7 May 1983, 10 days after he reported to Germany, the Red Cross notified his unit that a request for emergency leave had been issued for the applicant because his stepson was seriously ill.  The applicant was granted 25 days’ emergency leave with instructions for requesting an extension.  The applicant failed to return to his unit in Germany and, on 2 June 1983, he was listed as absent without leave (AWOL).  

On 19 March 1984, the applicant was apprehended by civil authorities in Columbus, Georgia, and released to military control at Fort Benning pending transportation to the United States Army Personnel Control Facility (PCF), Fort Bragg, North Carolina.  On 27 March 1984, the applicant was charged with being AWOL from 23 June 1983 to 19 March 1984.  

On 28 March 1984, the commander of the PCF interviewed the applicant.  The applicant stated that he was aware of the nature of the interview and the consequences of a discharge Under Other Than Honorable Conditions and that he desired elimination from the service under the provisions of chapter 10, Army Regulation (AR) 635-200.  The applicant stated he had departed AWOL from his unit due to personal problems (i.e., his son was ill with a brain disease and his wife was hospitalized for exhaustion following his son’s surgery); that he could not get a compassionate reassignment; and that he did not return to Germany in order to take care of his children.
On 28 March 1984, after consulting with counsel about his rights, the applicant, voluntarily, and in writing, requested discharge under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  The chain of command recommended approval of the applicant’s request for discharge with a UOTHC discharge.

On 29 March 1984, the applicant was placed on excess leave and remained on excess leave until 2 November 1984.

On 15 October 1984, the appropriate authority approved the applicant’s request for discharge and directed issuance of a UOTHC discharge.  Accordingly, on 2 November 1984, the applicant was discharged from the Army after completing 5 years, 3 months, and 23 days of creditable military service and accruing 293 days of lost time.

AR 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.  

There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

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 Board noted the applicant’s contentions and empathizes with his family/personal problems.  However, after careful consideration of all faithful and honorable service as well as the infraction of discipline, the extent thereof, and the seriousness of the offense, the Board determined that the applicant’s family/personal problems were not sufficiently mitigating to warrant an upgrade of his discharge.  Further, the Board could find no evidence that the applicant sought to obtain a compassionate reassignment to care for his family.

3.  The Board noted that after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  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.

4.  The Board concluded that the applicant’s administrative discharge under the provisions of chapter 10, AR 635-200 in lieu of trial by court-martial was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

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

__fne____  ____pm__  __rwa __  DENY APPLICATION

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

INDEX

CASE ID	AR2001065178	
SUFFIX		
RECON	 	
DATE BOARDED	20020516	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19841102	
DISCHARGE AUTHORITY	AR 635-200, c10	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.