MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 September 2002
         DOCKET NUMBER: AR2002067815

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Ms. Melinda M. Darby		Member
Mr. Ronald E. Blakely		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 under other than honorable conditions (UOTHC) discharge be upgraded to a fully honorable discharge.

APPLICANT STATES: In effect, that he went AWOL (absent without leave) and admits that it was wrong. However, he explains that his mother was ill when he enlisted, but that she became terminally ill after he reported for active duty. He provided letters to his drill sergeant verifying this fact in an attempt to get leave, but nothing was ever done. He then received orders for Germany, but his wife was pregnant with their first child and she was having medical problems. When he could not get leave, he went AWOL to care for his family.

In support of his application, the applicant submits: a copy of his DD Form 214 (Certificate if Release or Discharge from Active Duty); six letters that attest to the his good character and/or explain his mother's illness; a letter from his mother's doctor requesting that he not be sent overseas; several newspaper articles concerning his accomplishments; and several documents that show he participated in an adult literacy program and he was awarded his General Education Development (GED) diploma.

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

As a single 20-year old, he enlisted in the Regular Army for a period of 3 years on 29 November 1979. He was assigned to Fort Knox, Kentucky, for his military training and was awarded military occupational specialty (MOS) 19F (Tank Driver) on 4 April 1980. An entry on his DA Form 2-1 (Personnel Qualification Record) shows that he was scheduled to be assigned to Europe as his first permanent duty assignment.

On 7 April 1980, the applicant went AWOL. On 28 May 1980, civil authorities apprehended the applicant in Blackshear, Georgia. He was returned to military control at the United States Army Personnel Control Facility, Fort Bragg, North Carolina. He was interviewed and stated that he went AWOL because of family problems. He said that his mother was dying, but admitted that she was terminally ill at the time of his enlistment. He said that he enlisted to get away from home for a while. After undergoing military training, he said that he did not like the Army and sought a discharge, but no one would give him one, so he went AWOL. He added that he would go AWOL again because his girlfriend was pregnant and he also needed to be home to care for his mother.

On 11 June 1980, court-martial charges were preferred against the applicant for the above AWOL offense. On the same date, he consulted with legal counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. He was advised that he could receive a UOTHC discharge. He authenticated a statement with his signature acknowledging that he understood the ramifications and effects of receiving a UOTHC discharge. The applicant did not submit a statement in his own behalf.

On 13 June 1980, the applicant was placed on excess leave to await final disposition of his request for discharge.

On 26 June 1980, the separation authority directed that applicant be separated with a UOTHC discharge in pay grade E-1.

On 11 July 1980, the applicant was separated in absentia with a UOTHC discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. He had completed 5 months and 21 days of active military service and he had 52 days of lost time due to being AWOL.

There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge under 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 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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was 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. 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.

2. The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The Board noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ. The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.

3. The Board took into consideration the applicant’s character references to include the fact that his mother may have been seriously ill. Even if so, he had many other legitimate avenues through which to obtain assistance with his personal problems without committing the misconduct that led to the separation action under review. The applicant states that he spoke to his drill sergeant about his personal problems prior to going AWOL. However, there is no evidence that he spoke to his unit commander or anyone else in his chain of command. Further, there is no evidence that he officially requested a hardship discharge or that he sought the assistance of a military chaplain.

4. The Board also took into consideration the fact that the applicant has matured, has educated himself, and has become a successful citizen since being separated from active duty. The Board commends the applicant for his accomplishments. However, post service accomplishments alone do not provide the Board a basis upon which to grant relief.

5. 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

__jhl___ __mmd___ __reb___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002067815
SUFFIX
RECON
DATE BOARDED	20020919
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19800711
DISCHARGE AUTHORITY	AR635-200, Chap 10
DISCHARGE REASON	A60.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.6000
2.
3.
4.
5.
6.