MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 August 2002
         DOCKET NUMBER: AR2002072112

         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
Mr. Ted S. Kanamine		Member
Ms. Lana E. McGlynn		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 a general discharge.

APPLICANT STATES: In effect, that at the time of his being absent without leave (AWOL), he was experiencing problems at home and his wife was having a complicated pregnancy, which caused concerns about delivery. He goes on to state that he was denied leave and because of his concerns for his wife and unborn child, he went AWOL to be with her. After the child was born and both were out of danger, he contacted his unit and spoke with the first sergeant. After realizing that he could not reason with his first sergeant at Fort Riley, Kansas, he purchased a bus ticket and turned himself in at Fort Ord, California, and was placed in custody for about 3 weeks. During this time he was threatened over and over and finally was coerced into signing the paper to get out of the Army. He further states that it was never made clear to him that he would lose his benefits and privileges with the discharge he was given. Additionally, because of undue stress from threats and coerciveness, he was not afforded the opportunity to rebuff the discharge.

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

He was born on 1 February 1959 and enlisted in Los Angeles, California, on 2 September 1980, for a period of 3 years, training as a tactical wire operations specialist, and assignment to the 1^st Infantry Division at Fort Riley. He successfully completed his training and was transferred to Fort Riley on 5 January 1981.

On 2 April 1981, he went AWOL and remained absent until he surrendered to military authorities at Fort Ord on 8 June 1981. Charges were preferred against him on 12 June 1981.

On 12 June 1981, 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. He further elected not to submit a statement in his own behalf.

His counsel also gave him a counseling sheet, which explained in detail his rights and options under the circumstances. The applicant was also advised of the procedures for applying to the Army Discharge Review Board (ADRB) and this Board for an upgrade of his discharge. His counsel went into detail explaining to the applicant that he could expect to lose many or all of his benefits and that in all likelihood, the discharge would remain with him for the rest of his life. He encouraged the applicant to think about his decision more and to use the 72 hours he had to make such a decision. He acknowledged by his signature that he understood the information provided to him.

His chain of command at the time indicated that the applicant went AWOL because of family problems and he desired to be discharged to be with his family. He (the applicant) indicated that he would go AWOL again if returned to duty and after being advised of the requirements to apply for a hardship discharge or compassionate reassignment, the applicant declined the opportunity. The chain of command recommended that his request be approved.

The appropriate authority approved his request on 10 September 1981 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 9 October 1981, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 11 months, and 1 day of total active service and had 67 days of lost time due to AWOL.

There is no indication in the available records to show that he ever applied to the ADRB for an upgrade of his discharge within 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 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 length of his absence 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 that he was not briefed on the consequences of his discharge and that he was coerced into requesting the discharge he received. However, they are not supported by the evidence submitted with his application or the evidence of record. His records clearly show that he acknowledged that he was requesting the discharge of his own free will and without coercion. He also acknowledged that he understood the consequences of submitting such a request and the effects the discharge would possibly have on his benefits. Accordingly, 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

___lem __ __tsk ___ __fe ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072112
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/13
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1981/10/09
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.