MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 November 2002
	DOCKET NUMBER:   AR2002078214

	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. Joseph A. Adriance | | Analyst

  The following members, a quorum, were present:

| Mr. Arthur A Omartian | | Chairperson
| Mr. John P. Infante | | Member
| Ms. Regan K. Smith | | 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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that his discharge was inequitable because it was based on one incident.  

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

He initially entered active duty on 27 June 1984 and was trained in and awarded military occupational specialty (MOS) 13F (Radio Telephone Operator).  

On 30 March 1987, while he was serving at Fort Carson, Colorado, the applicant was discharged for the purpose of immediate reenlistment.  On 31 March 1987, he reenlisted for three years.  

The applicant’s record confirms that the highest rank he held while serving on active duty was specialist/E-4 (SPC/E-4).  The record documents no acts of valor, significant achievement, or service warranting special recognition, and it confirms that the only awards he received during his active duty tenure were the Army Service Ribbon and the first award of the Army Good Conduct Medal.  

On 27 May 1987, the applicant departed absent without leave (AWOL) from his unit at Fort Carson, Colorado.  He remained away for 43 days until returning to military control on 8 July 1987.  

On 13 July 1987, a Charge Sheet (DD Form 458) was prepared that preferred a court-martial charge against the applicant for his violation of Article 85 of the Uniform Code of Military Justice (UCMJ) for being AWOL with the intent to remain away permanently from on or about 27 May 1987 to on or about 9 July 1987.  

On 13 July 1987, the applicant consulted with legal counsel and he was advised on the basis for the contemplated court-martial and the maximum permissible punishment authorized under the UCMJ.  Counsel also advised the applicant on the effects of an UOTHC discharge and of the rights available to him.  Subsequent to this counseling, the applicant voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  The applicant included a statement with his discharge request that indicated that his sister, who was 17 and had a child, had a drug related problem and he felt his presence was needed at home to help her overcome these difficulties.  

On 23 July 1987, the separation authority approved the applicant’s request and directed that he be discharged UOTHC, and that he be reduced to the lowest enlisted grade.  On 10 August 1987, the applicant was discharged accordingly.
The separation document (DD Form 214) prepared on the applicant upon his separation, confirms that he was discharged UOTHC under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  This document also verifies that at the time of his discharge, he had completed a total of 3 years of creditable active military service, and he had accrued 43 days of time lost due to AWOL.  

On 11 July 1990, the Army Discharge Review Board considered the applicant’s case and it determined that his discharge was proper and equitable.  As a result, it denied his request for an upgrade to 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 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 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 contention that his discharge is inequitable because it was based on one incident.  However, it finds this factor is 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.  

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 and that the character of his discharge accurately reflects his overall record of service.  Therefore, the Board concludes that the requested relief is not warranted. 

4.  It appears that the applicant’s claim that his discharge was based on one incident is true.  However, there is no evidence of record and he has failed to provide independent evidence to show that he ever attempted to seek the assistance of his chain of command in pursuing legitimate options to resolve his family problems prior to departing AWOL. 

5.  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.

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

__AAO__  ___JPI___  __RKS  __  DENY APPLICATION

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

INDEX

CASE ID | AR2002078214
SUFFIX |
RECON |
DATE BOARDED | 2002/11/14
TYPE OF DISCHARGE | UOTHC
DATE OF DISCHARGE | 1987/08/10
DISCHARGE AUTHORITY | AR 635-200 C10
DISCHARGE REASON | In lieu of Court-Martial
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1.  189 | 110.0000
2. |
3. |
4. |
5. |
6. |