MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 December 2001
         DOCKET NUMBER: AR2001060392

         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:

Ms. Irene N. Wheelwright		Chairperson
Mr. Thomas Lanyi		Member
Mr. Jose A. Martinez		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: In effect, that he be placed in a Army retired status.

APPLICANT STATES: In effect, that while he was pending retirement he was charged with being absent without leave (AWOL), was administratively separated with a general, under honorable conditions discharge (GD), and lost his entitlement to retirement benefits. He claims that while processing for retirement, he entered a local truck driving school that was a 130 mile one way drive from the installation where he was assigned. He entered this school after gaining the approval of his superiors, who told him there would be no problem because the only duty he had to perform was staff duty noncommissioned officer (NCO). His request to attend school was approved by his unit executive officer; however, while attending school, he was apprehended and returned to post by the Military Police. He was formally charged with being AWOL and processed out of the Army without retirement benefits. He indicates that his post service performance and conduct has been good, as was his service in the Army. He claims that his military records will attest to his performance in the Army, including his record of promotions, awards, and combat service in Vietnam. He concludes by indicating that after having served for 19 years, 10 months, and 10 days, he should have received retirement benefits. In support of his application, he provides a letter from his employer attesting to his loyalty, dedication, and dependability.

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

On 28 July 1977, the applicant was administratively separated from the Army with a GD. He was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial.

On 22 June 1977, a court-martial charge was preferred against the applicant for being AWOL from 20 April to 10 June 1977. The applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), and the possible effects of an administrative discharge for the good of the service.

Subsequent to this counseling, the applicant voluntarily requested discharge, for the good of the service/in lieu of court-martial, under the provisions of chapter 10, Army Regulation 635-200. In his request, he acknowledged that he was guilty of the charge against him and he acknowledged that he understood that he could be deprived of many or all Army benefits as the result of accepting an administrative separation.

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The applicant’s unit commander recommended approval of the applicant’s request for discharge and recommended the applicant receive a GD. He commented that the applicant’s performance of duty had deteriorated within the last year. The battalion commander also recommended approval with a GD and commented, in pertinent part, that the applicant was given the benefit of attending a course to assist in his transition to civilian life, but, he took advantage of that situation and went AWOL. He further stated that the applicant had been given a direct order to return from the course that he refused to obey.

On 21 July 1977, the appropriate authority approved the applicant’s request for discharge, for the good of the service/in lieu of trial by court-martial, and directed that the applicant receive a GD. Accordingly, on 28 July 1977, the applicant was discharged after completing a total of 19 years, 10 months, and 10 days of creditable active military service and having accrued 51 days of time lost due to AWOL.

The separation document (DD Form 214), issued to and authenticated by the applicant with his signature on the date of his separation, confirms that he was separated with a GD, in the rank of staff sergeant/E-6, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by
court-martial.

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. An honorable or general discharge may be granted for soldiers separated under this provision, however, 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 he should receive retirement benefits based on his record of service and it acknowledges his good post service conduct. However, it finds these factors are not sufficiently mitigating to support the applicant’s request for retirement.

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2. The evidence of record confirms that the applicant, after consulting with defense counsel, voluntarily requested an administrative separation from the Army, and in doing so, he admitted guilt to the stipulated offense under the UCMJ. It is also clearly established that he was fully aware that he would lose his entitlement to retirement benefits prior to voluntarily requesting an administrative discharge and still elected this option. Therefore, the Board concludes there was no error or injustice related to the applicant’s discharge processing and it finds that the requested relief is not warranted in this case.

3. 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.

4. 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

__INW __ _ _TL __ __JAM __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060392
SUFFIX
RECON
DATE BOARDED	2001/12/18
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1977/07/28
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	Good of the Svc/In lieu of Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 338	136.0000
2.
3.
4.
5.
6.