MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 August 2001
         DOCKET NUMBER: AR2001059002

         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:

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 discharge under other than honorable conditions be upgraded to a general discharge.

APPLICANT STATES: That at the time, he was having marital problems and could not get any time off to handle those problems at home. Additionally, it was an injustice to discharge him at the time because he could not get anyone to represent him or speak in his behalf. In support of his application he submits three third parties letters of support.

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

He enlisted in Raleigh, North Carolina on 26 August 1980 for a period of 3 years and training as a military policeman. He successfully completed his training and was transferred to Germany on 27 December 1980. He was advanced to the pay grade of E-3 on 26 August 1981

He completed his tour on 26 June 1982 and was transferred to Fort Stewart, Georgia.

On 1 June 1983 nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 15 March to 15 April 1983, for uttering two worthless checks, and for the wrongful possession of marijuana. His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

The applicant’s commander also initiated a recommendation to bar the applicant from reenlistment. He cited as the basis for his recommendation, the applicant’s disciplinary record, low skill qualification test (SQT) scores and his failure to respond to repeated counseling sessions about being late for duty. The applicant acknowledged that he had been notified of the commander’s intentions and elected not to submit matters in his behalf. Accordingly, the appropriate commander approved the bar to reenlistment on 9 June 1983.

The applicant again went AWOL from 16 June to 17 June 1983 and from 18 July 1983 until he was apprehended by civil authorities in Lee County, North Carolina for failure to appear in court on a charge of driving while intoxicated. He was released to the AWOL Apprehension Team, was advised of his rights (which he waived) and was returned to military control at Fort Bragg, North Carolina on 13 February 1984, where charges were preferred against him.

On 15 February 1984, 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 not to submit a statement in his own behalf.

On 29 March 1984 the appropriate authority approved the applicant’s request for discharge and directed that he be discharged under other than honorable conditions.

Accordingly, the applicant was discharged under other than honorable conditions on 11 April 1984 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 2 years, 11 months, and 21 days of total active service and had 240 days of lost time due to AWOL.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

The supporting documents submitted by the applicant consists of a letter authored by his mother who attests that the applicant had marital problems and lost his father, which placed a lot of stress on him. The other letters are from a minister and a friend and attests to his good character.

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.

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 statements have been noted by the Board. However, they are not sufficiently mitigating when compared to the extensive length of his absences and his otherwise undistinguished record of service. The Board also notes that after being afforded the opportunity to assert his innocence or offer extenuating circumstances 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.

4. While the applicant may have been experiencing personal problems at the time, there is no indication in the available records and the applicant has provided no evidence to support his contention that he sought assistance from his chain of command and was denied the assistance he needed.

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

___lds___ __rvo ___ ___cp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059002
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/08/30
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	1984/04/11
DISCHARGE AUTHORITY	AR635-200/ch10
DISCHARGE REASON	689/gd of svc
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00
2.
3.
4.
5.
6.