MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 September 2002
         DOCKET NUMBER: AR2002068916

         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. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Barr		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 while he was stationed in Germany, his daughter was severely burned in New York. He returned on emergency leave and received a compassionate reassignment to be with his family and assist his daughter in recovery through numerous surgeries. He goes on to state that his chain of command did not assist him by giving him the time to take care of his family responsibilities, so he took it upon himself to put his daughter’s and family well being ahead of his military responsibilities. He further states that he was mentally and psychologically distraught and that it contributed to the actions that led to his discharge. In support of his application he submits letters of support from his mother, sister and two brothers which indicate that the applicant’s mental state at the time his daughter was burned was traumatic and devastating to him at the time.

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

He enlisted with a moral waiver in Brooklyn, New York, on 25 March 1981 for a period of 3 years and training as a field artillery firefinder radar operator. His moral waiver was for four arrests by civil authorities for disorderly conduct, petty larceny and two charges of 2^nd degree assault.

He completed his basic combat training at Fort Jackson, South Carolina and was transferred to Fort Sill, Oklahoma, to undergo his advanced individual training (AIT). On 9 July 1981, nonjudicial punishment was imposed against him for failure to go to his place of duty. His punishment consisted of correctional custody for 7 days and a forfeiture of pay.

Although the available records contain no explanation, it appears that the applicant was confined by civil authorities in Lawton, Oklahoma, from 5 October 1981 to 26 February 1982. This period was subsequently deemed an unavoidable absence.

On 26 June 1982, he was transferred to Germany for duty as a radar operator. Although the reasons are not specified in the available records, the applicant returned to the United States on emergency leave and received a compassionate reassignment to Fort Hamilton, New York, in Brooklyn.

On 16 November 1982, NJP was imposed against him for being AWOL from 25 October to 27 October 1982. His punishment consisted of a forfeiture of pay and extra duty.

The applicant again went AWOL on 23 November 1982 and remained absent until he surrendered to military authorities at Fort Dix, New Jersey, on 30 August 1983 and charges were preferred against him.

On 31 August 1983, 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. Additionally, he declined the opportunity to submit a statement in his own behalf.

The appropriate authority (a major general) approved his request on 8 September 1983 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 29 September 1983, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 8 months, and 26 days of total active service and had 279 days of lost time due to AWOL.

He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 17 November 1987. He asserted the same reasons to that board that he has presented to this Board and indicated that it was his desire to serve in the armed forces again. At the time he applied to the ADRB, he was incarcerated in a penal institution in Malone, New York. The ADRB opined that the applicant’s discharge was proper and equitable and voted unanimously to deny his request.

The applicant is currently incarcerated in a penal institution in Woodbourne, New York.

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. After being afforded the opportunity to assert his innocence 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, especially considering the number and length of his absences as well as his otherwise undistinguished record of service during such a short period of time.

4. The Board has noted the applicant’s contentions and supporting documents. However, they are not supported by the evidence submitted with his application or the evidence of record and the Board finds that his overall record of service is not sufficiently mitigating to warrant relief.

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

___be___ __fe ____ __wb ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002068916
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/10
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1983/09/29
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00
2.
3.
4.
5.
6.