ABCMR Memorandum of                                                             AR2002074701
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 October 2002                   
	DOCKET NUMBER:   AR2002074701

	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. Raymond J. Wagner | | Chairperson
| Mr. Roger W. Able | | Member
| Mr. John T. Meixell | | 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 an honorable discharge. 

APPLICANT STATES:  That he was very young and immature at the time of his enlistment; that he does not care about benefits, he just wants a clean record; that he has served in the State of Ohio as a law enforcement officer and an emergency medical technician for the past 7 years and he has also served in the "Ohio Military Reserve State Guard" as a medic.  He adds that he is not a criminal and hopes that his one mistake as an immature youth will be forgiven.

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

He was born on 26 November 1958 and initially enlisted in the US Army Reserve (USAR) Delayed Entry Program (DEP) on 8 May 1976.  He was to have entered the Regular Army on 11 May 1976, but he remained in the DEP due to medical disqualifications for hypertension.  He was ultimately separated from the DEP on 6 August 1976.

On 10 September 1976, the applicant enlisted in the Ohio Army National Guard (OHARNG).  On or about 21 November 1976, he reported for Active Duty for Training (ADT) at Fort Knox, Kentucky, and was assigned to Company B, 17th Battalion, 4th Training Brigade for basic combat training (BCT).  On 17 February 1977, he was reassigned to Company C, 13th Battalion, 4th Training Brigade for BCT.  He departed this unit in an absent without leave (AWOL) status the very next day, 18 February 1977.

On 21 March 1977, the OHARNG separated the applicant from the service of the Army National Guard, but not as a Reserve of the United States.  On 22 March 1977, he was listed as an AWOL USAR soldier from Company C, 13th Battalion, 4th Training Brigade.

On 7 July 1977, the applicant returned to military control at the Personnel Control Facility (PCF), Fort Knox.  On 15 July 1977, the applicant underwent a separation medical examination and he was determined to be qualified for separation.  On 18 July 1977, court-martial charges were preferred against the applicant for being AWOL from 22 March 1977 to 7 July 1977.

On 19 July 1977, the applicant consulted with legal counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  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.  The applicant indicated in a statement that was written in his own behalf that he joined the military because he did not have a job; that he went AWOL because he did not like being cursed and yelled at, and that he did not like being made to do things that he felt were beneath him; that he had found a job; that the job was being held for him until he returned to civilian life; and that he would not have much respect for the Army or anyone in the Army, if his discharge was not approved.

On 19 July 1977, the applicant was placed on excess leave without pay to await final disposition of his request for separation in lieu of trial by court-martial. 

On 1 August 1977, both the applicant's former unit commander and the PCF commander recommended approval of the applicant’s request for separation with a UOTHC discharge.  On 12 August 1977, the separation authority approved the recommendation and directed that the applicant be separated with a UOTHC discharge for conduct triable by court-martial.  

On 29 August 1977, the applicant was separated in absentia from the USAR under the provisions of chapter 10, Army Regulation 635-200 with a UOTHC discharge due to conduct triable by court-martial.  His DD Form 214 (Report of Separation from Active Duty) shows that he had completed 2 months and 27 days on active duty and he had 107 days of lost time due to being AWOL.  

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.  

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 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 was 18 years old when he reported for ADT.  There is no indication that he was any less mature than countless other young men and women who reported for active duty, serving honorably and without incident.
3.  The applicant voluntarily requested an administrative separation under the provisions of chapter 10, Army Regulation 635-200 to avoid trial by court court-martial.  There is no indication that the request was made under coercion or duress.  

4.  The Board considered the applicant's entire record of service and was convinced that both the reason for discharge and the characterization of service were appropriate considering the facts surrounding his separation.

5.  The Board commends the applicant for his accomplishments since being separated from active duty.  However, post service accomplishments alone do not provide the Board a basis upon which to grant relief.

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

__rjw___  __rwa___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID | AR2002074701
SUFFIX |
RECON |
DATE BOARDED | 20021010
TYPE OF DISCHARGE | (HD)
DATE OF DISCHARGE | 19770829
DISCHARGE AUTHORITY | AR635-200, Chap 10
DISCHARGE REASON | A70.00
BOARD DECISION | (DENY)
REVIEW AUTHORITY |
ISSUES         1. | 144.7000
2. |
3. |
4. |
5. |
6. |