MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 July 2003                   
	DOCKET NUMBER:   AR2002081847

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Thomas D. Howard, Jr.		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:  That his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD) under honorable conditions.

APPLICANT STATES:  In effect, that he was harassed; that he was never given a fair hearing; and that he received nonjudicial punishment (NJP) after he returned to his unit 1 hour late because a snow storm caused transportation delays.  The second time he returned to his unit late, he received a court-martial.  He also states that he spent 5 years in the Army and that he was a good worker with a clean record.  It was not until the very end that he started having problems. 

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

He enlisted in the Regular Army for 3 years on 31 August 1972.  On 20 December 1972, following completion of all required military training, he was awarded military occupational specialty (MOS) 11B, Light Weapons Infantryman. 
On 15 January 1973, the applicant was assigned to Germany.  

The applicant left his unit in an absent without leave (AWOL) status from 28 July-3 October 1973 when he returned to military control at Fort Leonard Wood, Missouri.  

On 16 October 1973, the applicant accepted NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the above period of AWOL.  His punishment included reduction from pay grade E-3 to pay grade E-1 (suspended for 60 days), forfeiture of $75.00 pay per month for 2 months, and 30 days of restriction. 

On an unknown date, the applicant was assigned to Fort Campbell, Kentucky.  On 22 July 1974, he accepted NJP for being AWOL from his unit from 14 July-15 July 1974.  On 27 August 1974, he accepted NJP for being disrespectful in language towards a noncommissioned officer on 5 August 1974.  Both punishments included extra duty and restriction.

The applicant was AWOL from his unit from 9-10 December 1974.  On 23 January 1975, he was convicted by a special court-martial of this period of AWOL.  His sentence included the forfeiture of $75.00 pay per month for 1 month.

On 18 March 1975, the applicant accepted NJP for disobeying lawful orders given by a noncommissioned officer on 12 and 13 March 1975.  His punishment included 7 days of extra duty and restriction.

The applicant left his unit in an AWOL status from 20 June 1975-14 February 1977.  On 4 Mach 1977, court-martial charges were preferred against him for this period of AWOL.

On 7 March 1977, the applicant consulted with legal counsel and requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 for the good of the service in lieu of court-martial.  He was advised that he could receive a UOTHC discharge.  He authenticated a statement with his signature acknowledging that he understood the ramifications and effects of receiving a UOTHC discharge.  He indicated in a statement submitted in his own behalf that he was drafted, so he enlisted because he had no choice.  He went AWOL because he had family problems and his commander did not believe him when he tried to explain.  He also indicated that he believed his family problems could be resolved if his request for separation was approved.

On 8 March 1977, the applicant's commander recommended approval.  On 14 March 1977, the approval authority approved the applicant's request for discharge under the provisions of chapter 10 and directed that he be separated with a UOTHC discharge in pay grade E-1.  

The applicant's DD Form 214 (Report of Separation from Active Duty) shows that he was separated on 28 March 1977 under the provisions of chapter 10, AR 635-200 with a UOTHC discharge for conduct triable by a court-martial.  He had completed 2 years, 8 months and 24 days of active military service and he had 510 days of lost time due to being AWOL, 167 days were lost subsequent to his normal expiration of term of service date. 

There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge under that board's 15-year statute of limitations.  

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 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.  Although an honorable or general discharge was authorized, a UOTHC discharge was 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 AR 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable regulations. 

3.  The Board found no evidence of arbitrary or capricious actions by the applicant's chain of command.  The applicant had an extensive period of AWOL just 5 months after he was inducted into the Army and he was continuously AWOL after this incident.  His conduct was inconsistent with the Army’s standards for acceptable personal conduct and his overall quality of service does not warrant an upgrade of his 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

__jns___  __tdh___  __tl____  DENY APPLICATION

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

INDEX

CASE ID	AR2002081847	
SUFFIX		
RECON		
DATE BOARDED	20030722	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19770328	
DISCHARGE AUTHORITY	AR635-200, Chap 10  	
DISCHARGE REASON	A71.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7100	
2.		
3.		
4.		
5.		
6.