MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 January 2003
	DOCKET NUMBER:   AR2002079265

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Tracey L. Pinson		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 discharge under other than honorable conditions (UOTHC) be upgraded. 

APPLICANT STATES:  In effect, that his being young and very much in love impaired his ability to serve in the Army.  

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

On 15 April 1981, the applicant enlisted in the Army.  He successfully, completed basic combat training (BCT) and was subsequently assigned to Fort Lee, Virginia for advanced individual training (AIT).  His record documents no acts of valor, significant achievement, or service warranting special recognition and it confirms that the highest rank he attained while on active duty was private/E-1. 

While assigned to Fort Lee, the applicant accepted nonjudicial punishment (NJP) on the following two occasions for the offenses indicated: 21 July 1981, for failure to go to his appointed place of duty; and 28 July 1981, for being absent without leave (AWOL) from on or about 15 to on or about 20 July 1981, wrongfully using provoking words, wrongfully communicating a threat, and unlawfully striking another soldier.  On 3 August 1981, he went AWOL and remained away until returning to military control at the US Army Personnel Control Facility, Fort Dix, 
New Jersey on 16 October 1981.  

On 20 October 1981, a court-martial charge was preferred against the applicant for the AWOL period from 3 August to 16 October 1981.  After consulting with legal counsel and being advised of the basis for the contemplated trial by 
court-martial; the maximum allowable punishment; and the possible effects of an UOTHC discharge, the applicant voluntarily requested to be discharged for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.

On 26 October 1981, the appropriate authority approved the applicant’s discharge request and directed he be separated UOTHC and that he be reduced to the lowest enlisted grade.  

On 9 November 1981, the applicant was discharged accordingly.  At the time of his discharge he had completed only 3 months and 10 days of creditable active military service and he had accrued 81 days of time lost due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statue of limitations.

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 court-martial charges have been preferred.  Although an honorable or general discharge is authorized, 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.  The Board notes the applicant’s contentions that his being young and very much in love impaired his ability to serve and led to the AWOL related misconduct that ultimately resulted in his discharge.  However, it finds these factors are not sufficiently mitigating to warrant the requested relief. 

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The Board notes 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, he admitted guilt to the stipulated offense under the UCMJ.  

3.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It also notes that the characterization of service for this type of discharge is normally UOTHC and that the applicant was aware of that prior to requesting discharge.  Finally, the Board finds the applicant’s characterization of service was appropriate based on his short and undistinguished overall 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

__KAK__  __MHM  _  __TLP __  DENY APPLICATION 

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

INDEX

CASE ID	AR2002079255	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/01/28	
TYPE OF DISCHARGE	 UOTHC	
DATE OF DISCHARGE	19811108	
DISCHARGE AUTHORITY	AR635-200 .  .  .  .  .  	
DISCHARGE REASON	In lieu of trial by CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.7100	
2.	144.9301	
3.		
4.		
5.		
6.