MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 December 2001
         DOCKET NUMBER: AR2001060884

         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. Paul A. Petty		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Jose A. Martinez		Member
Mr. Thomas Lanyi		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)

---

APPLICANT REQUESTS: That his discharge under other than honorable conditions be upgraded to an honorable discharge; change the reason to “for the convenience of the government,” and change the reenlistment code to RE-1.

APPLICANT STATES: In effect, that he suffered from psychiatric problems, depression, and suicidal ideation; that he was discriminated against because he was of Mexican descent; and that he was worried about the safety of his wife and new born daughter when he was gone to the field for 21 days at a time. He tried to get help from the chain of command, the chaplain, and legal counsel. The chaplain recommended to the chain of command that they let him out of the Army but they refused to let him out of his contract. The legal counsel advised him that it was better to go absent without leave (AWOL) than to harm himself. Since his discharge, he has not gotten into any criminal trouble. He has difficulty getting a job because of the type of discharge that he has. He feels that his discharge is not fair and that he should have received medical treatment to help him deal with his depression and suicidal thoughts.

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

That he enlisted in the Regular Army at the El Paso, Texas, Military Entrance Processing Station, on 18 January 1983, for a 4 year term of service. He was enlisted in the pay grade E-3 based on his community college level education. He was also authorized a $5,000 enlistment bonus for enlisting as a military occupational specialty (MOS) 13B, cannon crewman, and $12,000 fund in the Veterans Educational Assistance Program (VEAP). He was age 32 at enlistment and married with two dependents.

He completed One Station Unit Training at Fort Sill, Oklahoma, on 20 April 1983. He was given leave in route and on 11 May 1983, he was assigned to A Battery, 1/6^th Field Artillery Battalion, at Fort Bragg, North Carolina, as a cannon crewman. On 1 October 1983, he was transferred to B Battery, 5/8^th Field Artillery Battalion, at Fort Bragg. He lived outside Fort Bragg, in Fayetteville, North Carolina, with his wife. He was AWOL from 18-22 October 1983.

On 29 January 1984, the applicant was again AWOL. On 28 February 1984, he was dropped from the rolls as a deserter. He was apprehended by civil authorities on 30 July 1984, in El Paso, and returned to military control at Fort Sill. On 3 August 1984, the applicant requested discharge for the good of the service in lieu of trial by court-martial. By his signature, he elected not to submit any statement in his own behalf, waived a physical and mental (psychological) evaluation, and confirmed that he was counseled and understood that he could be discharged under other than honorable conditions which could deprive him of


many or all Army benefits, Veterans Administration benefits, and that he could expect to encounter substantial prejudice in civilian life as a result of such a discharge. By his signature, he also acknowledged that he was guilty of the AWOL charge which authorizes imposition of a bad-conduct or dishonorable discharge, that he did not desire rehabilitation, that he had no desire to perform further military service, and that he was provided counsel and advised of his rights.

On 31 August 1984, the commanding general approved his request for discharge and directed reduction to pay grade E-1 and discharge under other than honorable conditions in accordance with chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial, separation code KFS, reenlistment code RE-3B. The applicant was so discharged on 18 September 1984, with 1 year, 1 month, and 28 days active service and 91 days lost time.

Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10 (Discharge for the Good of the Service), states that a member who has committed an offense or offenses for which the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) authorize punishment which includes a punitive discharge (bad conduct or dishonorable), 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 undesirable discharge under other than honorable conditions is normally considered appropriate. According to the MCM, the maximum punishment for AWOL in excess of 30 days is a bad conduct discharge or a dishonorable discharge, confinement for one year, and total forfeiture of all pay and allowances.

Army Regulation (AR) 635-5-1 (Separation Program Designators (SPD)), in effect at the time, states that the SPD code for discharge under authority of
AR 635-200, chapter 10, is KFS, for the good of the service in lieu of trial by court-martial. In accordance with AR 601-280 (Army Reenlistment Program), the
RE code 3B is the code applicable to soldiers who had lost time during the period of service and indicates that the soldier is not eligible for reenlistment without a waiver. The regulation also states that RE codes may only be changed if they are determined to be administratively incorrect.

His medical records contain no record or complaint of any mental or emotional problems, depression, or suicidal ideation.

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 was charged with AWOL in excess of 30 days, a violation which under the MCM, a court-martial could sentence the applicant to a punitive discharge (bad conduct or dishonorable), confinement up to one year, and total forfeitures. Rather than risk any of the above sentences, the applicant voluntarily requested discharge in lieu of trial by court-martial and acknowledged that he might receive an under other than honorable conditions discharge which is normally given in such cases. His request was granted and an under other than honorable conditions discharge was directed in accordance with AR 635-200, chapter 10. There is no error on injustice in this discharge. The discharge is just and fair under the circumstances supported by the evidence. The character of the discharge (under other than honorable conditions), and the reason (for the good of the service in lieu of trial by trial by court-martial), and the separation code (KFS), are correct and just. The RE code (3B) is correct and not subject to change.

2. In the chapter 10 discharge procedure, the applicant was given an opportunity to provide a statement in his own behalf to present his contentions that he now presents to the Board. He was also given an opportunity for a physical and mental examination that could have documented his contentions and could have provided medical recourse. He was advised of these rights but waived them by his own signature. There is no evidence to support his contentions that he suffered from psychiatric problems, depression, and suicidal ideation; that he was denied medical attention; that he was discriminated against; that his chain of command did not help him; or that his legal counsel advised him to go AWOL.

3. 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

__iw___ ___jm____ ___tl___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001060884
SUFFIX
RECON
DATE BOARDED	20011218
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19840918
DISCHARGE AUTHORITY	AR 635-200, chapter 10
DISCHARGE REASON	For the good of the service in lieu of trial by court-martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144 – Administrative Discharge
2.
3.
4.
5.
6.