MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 October 2001
         DOCKET NUMBER: AR2001058114

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Harry B. Oberg		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 discharge under other than honorable conditions be upgraded to at least a general discharge.

APPLICANT STATES: He was proficient in his military occupational specialty (MOS) of a recovery specialist and rose quickly through the ranks to the pay grade of E-5. However, he began to experience marital problems and decided to put his military obligations on hold to take care of his family problems. Unfortunately, he decided to take excess leave to try and resolve his problems because he was young and none the wiser. He goes on to state that he made a mistake at the time because he thought it was the only thing to do and now sees that there were other options available. He also states that he was told his discharge would be automatically upgraded and asks the Board to consider his otherwise good record of performance in upgrading his discharge. In support of his application he submits three letters of appreciation/commendation.

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

He enlisted on 12 January 1976 for a period of 3 years and training as a military policeman (MP). He completed his basic training and was transferred to Fort McClellan, Alabama to undergo his advanced individual training (AIT) as an MP. He apparently did not complete his training and was transferred to Aberdeen Proving Ground, Maryland to undergo AIT as a recovery vehicle operator.

He successfully completed his AIT and was transferred to Germany on 15 August 1976. He was advanced to the pay grade of E-4 on 1 May 1977.

He reenlisted on 21 October 1977 for a period of 5 years and payment of a selective reenlistment bonus (SRB).

He completed his tour in Germany on 3 August 1978 and was transferred to Fort Lewis, Washington. He was promoted to the pay grade of E-5 on 13 April 1979 and remained at Fort Lewis until 15 December 1979, when he was transferred back to Germany.

On 16 February 1980, he departed his unit on ordinary leave with a return date of 28 February 1980. He failed to report back to his unit and was reported as being absent without leave (AWOL). He remained absent until he was apprehended by civil authorities in Canton, Ohio on 28 August 1980. He was returned to military control at Fort Knox, Kentucky where charges were preferred against him on 9 September 1980.

On 10 September 1980, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He further elected to submit a statement in his own behalf whereas he asserted, in effect, that he was experiencing family/marital problems, that he was fed up with the Army and that he would prefer not to have any further association with the organization.

The appropriate authority approved his request and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 4 November 1980 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 4 years, 3 months and 26 days of total active service and had 180 days of lost time.

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within 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 the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions is normally considered appropriate and there never have been any provisions for an automatic upgrade of such a discharge.

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 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.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.
3. The applicant’s contentions and supporting documents have been noted by the Board. However, the Board notes that after being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. In doing so he admitted guilt to the charges against him. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the seriousness of the offense, the extensive length of his absence and his rank at the time.

4. The applicant’s contention that he was informed that his discharge would automatically be upgraded is not supported by the evidence submitted with his application or the evidence of record. Additionally, there is not now, nor has there ever been any provisions for an automatic upgrade of such a discharge.

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

__cla____ __hbo___ ___ao___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058114
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/10/30
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1980/11/04
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00
2.
3.
4.
5.
6.