ABCMR Memorandum of                                                             AR2002074883 
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:              

	BOARD DATE:                  8 October 2002
	DOCKET NUMBER:          AR2002074883

	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 Farley | | Analyst

  The following members, a quorum, were present:

| Ms. Jennifer L. Prater | | Chairperson
| Mr. Melvin H. Meyer | | Member
| Mr. James E. Anderholm | | 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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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 be upgraded to honorable.  

APPLICANT STATES:  In essence, that it was not explained to him how many days of emergency leave he was authorized due to a death in his family.  In support of his claim he submits a copy of his child’s death certificate dated 
6 October 1989.

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

On 11 January 1989, he enlisted in the Regular Army for a period of 4 years.  
He completed both basic combat training and advanced individual training 
at Fort Sill, Oklahoma.  He was awarded military occupational specialty (MOS) 13E (Cannon Crewman) on 21 September 1989.

On 5 December 1989, the applicant was listed as being absent without leave (AWOL).

On 30 January 1990, he was apprehended by civilian authorities and returned to military control at the Personnel Control Facility, Fort Sill, Oklahoma, where he was placed in a duty status.  

On 31 January 1990, he was counseled on the requirements for completion of a medical examination prior to separation.  He chose to waive his rights to have a medical examination.  He also submitted a request to be placed in a voluntary excess leave status, pending his discharge processing.

On 2 February 1990, court-martial charges were preferred against the applicant for being AWOL from 5 December 1989 to 30 January 1990.  

On the same day the applicant consulted with counsel and voluntarily requested discharge under the provisions of chapter 10, Army Regulation AR 635-200, for the good of the service in lieu of trial by court-martial.  His request acknowledged that he was guilty as charged or of a lesser-included offense for which he could receive a punitive discharge.  He indicated that he did not desire further rehabilitation and that he had no desire to perform military service.  He acknowledged that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive, including that he might lose some or all veteran benefits.  During his interview, he stated that his being AWOL was due to personal reasons.  His request to go home in a excess leave status was approved, pending his discharge processing.

The chain of command recommended that the applicant be separated with an under than honorable conditions (UOTHC) discharge.

On 27 February 1990, the separation authority approved the applicant’s request and directed an UOTHC discharge and reduction to the lowest enlisted rank. 

On 20 March 1990, he was separated with a UOTHC discharge for the good of the service, in lieu of trial by court-martial, under the provision of chapter 10, Army Regulation 635-200.  He had completed 1 year and 15 days of creditable service with 56 days of lost time due to being AWOL and 49 days of excess leave.  

On 16 June 2002, 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 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 is authorized, a discharge under other than honorable conditions is normally considered appropriate.

The Manual for Courts-Martial, Table of Maximum Punishments, shows that a
punitive discharge is authorized for any AWOL of more than 30 days.

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 found that the applicant's contentions that his command did not explain to him how many days of emergency leave he was authorized, due to a death in his family was unsupported.  In order to be granted leave, the applicant had to have submit a signed DA Form 31 (Request and Authority for Leave) which requires that he specify the type of leave, his leave address and provide his departure and return dates.  The authorization of leave is based on the information the applicant submits.  The Board notes that he departed AWOL two months after the event, which he claims, caused his AWOL.  

2.  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.  

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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

___JLP  _  ___MHM   ___JEA__  DENY APPLICATION

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

INDEX

CASE ID | AR2002068103
SUFFIX |
RECON |
DATE BOARDED | 2002.10.08
TYPE OF DISCHARGE | UOTHC
DATE OF DISCHARGE | 19900320
DISCHARGE AUTHORITY | AR 635-200
DISCHARGE REASON | Chapter 10
BOARD DECISION | DENY
REVIEW AUTHORITY | Director
ISSUES         1. |
2. |
3. |
4. |
5. |
6. |