MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 September 2002
         DOCKET NUMBER: AR2002074227

         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. Arthur A. Omartian		Chairperson
Mr. Kenneth W. Lapin		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: That he was receiving treatment for a stomach condition in May 1980 while assigned to Fort Ord, California and was taking medication; however, the doctors could never really identify the real problem. While on leave during Christmas, he started having problems again and went to his family doctor, who sent him to the hospital, where he was diagnosed with acute appendicitis. He had an appendectomy on 8 February 1981. He goes on to state that his discharge was too severe because he was young and did not understand the ramification of his actions. He also states that he has been punished long enough and deserves a second chance. In support of his application he submits two third party statements that relate to his character, a letter and operative report from the hospital in which he was treated, and copies of his military record.

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

He was born in Petersburg, West Virginia, on 5 March 1959 and enlisted in Pittsburgh, Pennsylvania, on 6 May 1980, for a period of 3 years, training as an infantryman and assignment to the 7^th Infantry Division at Fort Ord, California. He successfully completed his training at Fort Benning, Georgia, and was transferred to Fort Ord on 13 August 1980. He was advanced to the pay grade of E-2 on 1 October 1980.

On 6 January 1981, the applicant went absent without leave (AWOL) and remained absent until he was apprehended by civil authorities in Petersburg, West Virginia, on 24 March 1981. He was returned to military control at Fort Dix, New Jersey, where charges were preferred against him on 30 March 1981.

Upon his return to military control, the applicant indicated that he went AWOL because he could not adapt to military ways and that he did not want to stay in the Army. He underwent a mental status evaluation and was determined to be mentally responsible.

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 elected not to submit a statement in his own behalf.

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

Accordingly, he was discharged under other than honorable conditions on 27 May 1981, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 10 months, and 4 days of total active service and had 77 days of lost time due to AWOL.

There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board within that board’s 15-year statute of limitations.

The documents provided by the applicant show that the applicant was admitted to a hospital in Petersburg, West Virginia, on 8 February 1981 and was treated for acute appendicitis (Appendectomy).

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.

4. The Board has noted the applicant’s contentions and supporting documents. While the Board concedes that he was in fact treated for acute appendicitis in a civilian hospital, this was after he had been AWOL for a month. Additionally, the evidence shows that he deliberately departed Fort Ord in an AWOL status in January 1981. He was almost 22 years of age at the time. Accordingly, the Board finds that his overall record of service and his supporting documents are 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

__kwl ___ __dh____ ___ao___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074227
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/24
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1981/05/27
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.