MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 August 2001
         DOCKET NUMBER: AR2001056343

         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 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)

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APPLICANT REQUESTS: That his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

APPLICANT STATES: In effect, that he was not absent without leave (AWOL) when he left his unit to go home to get custody of his sister. His command signed the leave paperwork; however, he failed to pick it up prior to his departure.

COUNSEL CONTENDS: That the Board should review the applicant's record and take into consideration his request.

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

That on 18 September 1979, he enlisted in the Regular Army for a period of 3 years and training in military occupational specialty (MOS) 19E (Armor Crewman). He completed basic and advanced individual training and, on 14 January 1980, he was assigned to Fort Hood, Texas.

On 1 July 1980, the applicant left his unit in an AWOL status and he remained AWOL until he returned to military control at Fort Dix, New Jersey on 11 August 1980. He was also AWOL during the following periods: from 18 August-4 September 1980, from
13-16 September 1980, from 19-22 September 1980, from 27-28 September 1980 and from 2-6 October 1980. There is no evidence that he was ever punished for all of these AWOL offenses.

On 10 October 1980, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for two periods of AWOL (1 July-11 August 1980 and 18 August-4 September 1980) and for disobeying a lawful order from a noncommissioned officer (NCO) on 4 September 1980. His punishment included forfeiture of $150.00 pay per month for 2 months and 14 days' extra duty and restriction.

On 22 October 1980, he was assigned to Fort Bliss, Texas. On 3 September 1981, the applicant was convicted by a special court-martial of being disrespectful in language towards a senior NCO on 5 June 1981 and of being AWOL from 15-30 June 1981. He was sentenced to reduction from pay grade E-2 to pay grade E-1; forfeiture of
$300.00 pay per month for 3 months, and confinement at hard labor for 75 days. He was confined at Fort Riley, Kansas from 3 September-13 October 1981.

On 5 December 1981, the applicant was hospitalized after he intentionally swallowed four bottles of Robitussin and an undetermined number of Parafon pills. He stated that he took the medication to end his life because of personal problems.

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On 8 December 1981, a psychiatric mental status evaluation determined that the incident was a suicidal gesture and not a true suicide attempt. Additionally, the evaluation found the applicant to be mentally sound at the time of the alleged incident and capable of distinguishing right from wrong and adhering to the right. He was determined to have sufficient mental capacity to understand and participate in administrative board proceedings.

On 15 December 1981, court-martial charges were preferred against the applicant for failure to go to his appointed place of duty at the time prescribed on 3 December 1981, for disobeying a lawful order on three occasions, and for being disrespectful in deportment on 5 December 1981. In February 1982, additional charges were preferred against him for five specifications of failure to go to his place of duty (21, 30 December 1981 and 9,10, 15 January 1982), two specifications of disobeying a lawful order (on 11 , 12 January 1982), and one specification of possession of .4 grams, more or less, of marijuana (on 21 January 1982).

On 28 January 1982, a Line of Duty (LOD) investigation found that the applicant's hospitalization (for the suicide gesture) on 5 December 1981 was "Not in the Line of Duty-Due to Own Misconduct."

On 8 February 1982, an additional mental status evaluation by professionally trained personnel determined that the applicant had a "passive-aggressive personality disorder with passive-dependent and mixed features." The evaluation recommended the applicant be administratively discharged as deemed appropriate by the command.

On 5 March 1982, 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 the offense for which he was charged could lead to a UOTHC discharge. He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UOTHC discharge. The available records do not contain a self-authored statement that the applicant submitted in his own behalf.

On unknown dates, the applicant's unit and intermediate commanders recommended that his request for separation be approved with a UOTHC discharge. On 5 March 1982, competent authority approved his request for discharge with a UOTHC characterization of service.

On 11 March 1982, the applicant was separated with a UOTHC discharge by reason of an administrative discharge in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200. He had completed 1 year, 1 month and 15 days of active military service and he had days 88 of lost time due to AWOL.

On 10 November 1982, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade. The ADRB considered the applicant's psychiatric evaluation and noted that the he was mentally and physically cleared for separation.
On 22 January 1986, this Board denied the applicant’s request for an upgrade due to a physical disability (AC84-01055). A Memorandum of Consideration, prepared by that Board shows that on 12 November 1985, the Office of the Surgeon General (OTSG) opined that the applicant showed no evidence of psychosis until early 1983, which was almost 1 year after his separation from the military. It was noted that his passive aggressive personality disorder was documented while he was on active duty, but that a character and behavior disorder may render an individual administratively unfit rather than unfit by reason of physical disability. The OTSG opined that the applicant was medically fit for retention or appropriate separation at the time. The advisory opinion is no longer contained in the available record.

On 2 August 1989, this Board denied the applicant’s request to delete his lost time from his records (AC89-05768).

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 UOTHC discharge 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. 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. As previously stated, 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 then in effect. There is no indication that the request was made under coercion or duress. Considering the facts of the case, both the type of discharge directed and the reason for discharge were appropriate.

3. The available records show that the applicant was AWOL on at least seven different separate occasions. There is nothing in the available record to indicate that he was ever in a leave status when he was listed as AWOL and he has provided no evidence to the contrary.

4. The applicant's records have been fully examined and there is no evidence of impropriety or inequity. 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
                                            

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INDEX

CASE ID	AR2001056343
SUFFIX
RECON
DATE BOARDED	20010830
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19820311
DISCHARGE AUTHORITY	AR635-200, CHAPTER 10
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.7000
2.
3.
4.
5.
6.