MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 November 2001
         DOCKET NUMBER: AR2001060585

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Deborah S. Jacobs		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Donald P. Hupman, Jr.		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 honorable.

APPLICANT STATES: In effect, that he feels his punishment was too severe for what he did. He contends that he went absent without leave (AWOL) because he had to take care of his family; however, he did turn himself in to the military and received his disciplinary actions/punishment. He realizes that what he did was not right, but there were compelling reasons for his actions. He states that he was an excellent soldier as far as his military bearing, knowing his job and doing it well. Since his discharge, he has done well in his life and believes that his post-service achievements have bearing on this application. In support of his application, he submits an undated letter of explanation, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), and five character reference letters.

COUNSEL CONTENDS: That the applicant maintains that family problems led to his period of AWOL and that the applicant provided supporting documents showing that he has led a productive life since his discharge. Counsel requests that clemency be considered as a basis for upgrading the applicant’s discharge. Counsel further points out that the applicant submitted evidence showing that he works as a health provider in his Native American community, is well respected by the community leaders and has been described as a conscientious employee and an asset to the health program.

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

The applicant entered active duty on 19 March 1979 for a period of 4 years. He successfully completed basic training at Fort Dix, New Jersey. While in advanced individual training, the applicant went AWOL for two days (from
21 May 1979 to 22 May 1979).

On 19 September 1979, nonjudicial punishment was imposed against the applicant for being AWOL from 6 June 1979 to 29 August 1979.

The applicant went AWOL on 6 August 1980 and returned to military control on
6 August 1981.

On 14 August 1981, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct (AWOL for a period in excess of one year).

On 18 August 1981, nonjudicial punishment was imposed against the applicant for being AWOL from 6 August 1980 to 6 August 1981. His punishment consisted of a forfeiture of $250 per month for 2 months (suspended until
18 October 1981), reduction to private/E-1 and 30 days of restriction and extra duty (suspended until 18 October 1981).

On 19 August 1981, the applicant underwent a mental status evaluation and was cleared for any administrative action deemed appropriate by his chain of command.

On 24 August 1981, the applicant’s unit commander initiated a recommendation to separate him from the service under the provisions of Army Regulation
635-200, chapter 14, for misconduct. He based his recommendation for separation on the applicant’s AWOL for a period in excess of one year.

On 24 August 1981, after consulting with counsel, the applicant waived his rights to a hearing of his case before a board of officers, representation by counsel and elected not to make a statement in his own behalf. He also acknowledged that he may encounter substantial prejudice in civilian life if a discharge under other than honorable conditions were issued and that he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

The intermediate commander concurred with the recommendation for separation.

On 24 August 1981, the separation authority approved the recommendation for separation and directed that the applicant be discharged under other than honorable conditions.

Accordingly, the applicant was discharged under other than honorable conditions on 30 November 1981 under the provisions of Army Regulation 635-200, chapter 14, for misconduct (AWOL). He had served 1 year, 5 months and 16 days of total active service and had 451 days of lost time due to AWOL.

There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribes procedures for separating members for misconduct. Specific categories included fraudulent enlistment/reenlistment, conviction by civil court, desertion and absence without leave, and other acts or patterns of misconduct. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. The regulation states that a member discharged for desertion and absence without leave who has returned to military control will be furnished an honorable, general, or under other than honorable conditions as determined by the convening authority.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

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 claim of family problems which led to his decisions to go AWOL. However, these matters are not grounds for upgrading his discharge.

2. The Board considered the character reference letters submitted in support of the applicant’s post service achievements and conduct. However, good post service conduct alone is not a basis for upgrading a discharge.

3. The Board reviewed the applicant’s record of service which included two nonjudicial punishments and 451 days of lost time and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

4. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6. The applicant failed to convince the Board through the evidence submitted or the evidence of record that his discharge was unjust and should be upgraded.

7. 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.

8. 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

DSJ_____ EJA____ DPH_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060585
SUFFIX
RECON
DATE BOARDED	20011106
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19811130
DISCHARGE AUTHORITY	AR 635-200 CHAPTER 14
DISCHARGE REASON	Misconduct (AWOL)
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.