MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 August 2001
         DOCKET NUMBER: AR2001051712

         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. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Christopher J. Prosser		Member
Ms. Linda D. Simmons		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 discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES: In effect, that he was a good soldier and that he departed his unit absent without leave (AWOL) because his mother was ill and he was needed at home. He also stated that he requested leave to no avail and that he kept in touch with his unit by calling in.

In support of his application, the applicant submitted several letters of appreciation from his military assignments and character references from his civilian jobs.

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

He enlisted in the Regular Army on 28 February 1978 for a period of 4 years. He enlisted for the Unit/Station of Choice Enlistment Option and for a $2,500.00 cash bonus for training in military occupational specialty (MOS) 19E, Armor Crewman. Following completion of all military training, the applicant was awarded MOS 19E and was assigned to Fort Knox, Kentucky.

On 23 May 1979, the applicant departed his unit in an AWOL status and remained AWOL until he returned on 26 May 1979. On 27 June 1979, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for this period of AWOL. His punishment consisted of reduction in rank to private/E-2 (suspended for 3 months), forfeiture of $50.00 pay for one month, and 7 days of extra duty.

On 4 June 1979, the applicant departed his unit in an AWOL status and remained AWOL until he returned on 22 June 1979. He accepted an NJP for this period of AWOL. His punishment consisted of reduction in rank to private/E-2, forfeiture of $150.00 pay per month for 2 months, and 20 days of restriction and extra duty.

On 21 August 1979, the applicant departed his unit in an AWOL status and remained absent until he returned on 23 August 1979.

On 24 August 1979, the applicant was brought before his platoon leader for possessing unauthorized weapons in his room. The applicant was in possession of a set of nunchaku (martial arts weapon), a chain about 16 inches long, a mattock handle, and a knife with a blade in excess of 3 inches.

On 4 September 1979, the applicant departed his unit in an AWOL status and remained absent until he returned on 11 September 1979.

On 14 September 1979, court-martial charges were preferred against the applicant for two specifications of AWOL (21–23 August 1979 and
4–11 September 1979) and one specification of violating a lawful general regulation by possessing a pair of nunchaku, a chain about 16 inches long, a mattock handle, and a knife with a blade in excess of 3 inches.

The applicant, after consulting with counsel, voluntarily 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. This request was made after counsel advised the applicant of the contemplated trial by court-martial, the maximum punishment, and the possible effects of a UOTHC discharge. The applicant also attested to the fact that he fully understood that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veteran Affairs, and that he may be deprived of many Veteran benefits under state law.

On 24 September 1979, the unit commander recommended approval of the chapter 10 request for discharge with a UOTHC. He stated that the applicant had tried everything to get out of the Army, that his time in the unit had been filled with absences, profiles and appointments, and that he had taken every opportunity to evade his responsibilities. The unit commander also stated that the applicant had told him his intention was to escalate his misbehavior by stages until his discharge would be approved. The applicant conceded to the unit commander that he wanted out of the Army to spend more time with his 16 year old girlfriend.

On 4 October 1979, the appropriate authority approved the applicant’s request for separation and directed the issuance of a UOTHC discharge and a reduction in grade to the rank of private/E-1. Accordingly, on 11 October 1979, the applicant was discharged after completing 1 year, 6 months, and 13 days of active military service and accruing 31 days of lost time.

There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 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 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 noted the applicant’s contentions; however, the evidence of record does not support them, nor has the applicant provided any corroborating evidence to support them.

2. The Board also noted the character references and letters of appreciation submitted by the applicant in support of his application. However, these accomplishments do not provide the Board a basis upon which to grant relief.

3. The applicant’s voluntary request for separation under the provisions of chapter 10, AR 635-200 for the good of the service, to avoid trial by court-martial was accomplished in compliance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was separated. There is no indication that the request was made under coercion or duress.

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

__RVO__ ___CJP _ _ LDS___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001051712
SUFFIX
RECON
DATE BOARDED	20010830
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19791011
DISCHARGE AUTHORITY	AR 635-200, c10
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.	144.9221
2.
3.
4.
5.
6.