MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 October 2002
         DOCKET NUMBER: AR2002075164

         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. Shirley L. Powell		Member
Mr. Elzey J. Arledge, 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: In effect, that his discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES: That after serving a year in Korea, he was transferred to Fort Riley, Kansas. At the time, his wife would not move to Kansas and elected to remain in North Carolina with their three children. He goes on to state that he reported to Fort Riley on time, hoping that his family would follow. After 2 months, he requested leave to attend to his family affairs and was denied. Being overcome with grief and missing his family, whom he had not seen in over a year, he felt he had to go home and try and salvage his marriage and family. After arriving in North Carolina, he went to Fort Bragg, North Carolina, for assistance. He was informed that his only option was to go absent without leave (AWOL) for 30 days and then turn himself in. He did so and received a discharge under other than honorable conditions after 7 years of honorable service. He goes on to state that his years of service, his service in Vietnam, Korea, Germany and a rotation in Egypt should be taken into consideration in upgrading his discharge.

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

He initially enlisted in the Regular Army on 7 November 1968 and served a tour in Vietnam and 6 months in Germany before he was honorably released from active duty on 1 November 1971. He again enlisted on 3 February 1975 and served until he was honorably discharged on 22 August 1975 for an unfulfilled enlistment commitment. He enlisted in the North Carolina Army National Guard (NCARNG) on 25 February 1976 and served with the NCARNG until he was honorably discharged on 14 August 1980 and was transferred to the United States Army Reserve Control Group.

On 7 October 1980, he again enlisted in the Regular Army for a period of 3 years, training as a medical specialist and assignment to Fort Bragg. He completed his training and was transferred to Fort Bragg on 11 March 1981.

On 16 August 1981, nonjudicial punishment (NJP) was imposed against him for being AWOL from 27 July 1981 to 3 August 1981. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 90 days) and extra duty.

He was honorably discharged on 22 September 1983, for the purpose of immediate reenlistment. He was granted a waiver for lost time and reenlisted on 23 September 1983, for a period of 3 years.

On 27 October 1983, he was transferred to Korea, where he was promoted to the pay grade of E-5 on 5 December 1983. He remained in Korea until 7 December 1984, when he was transferred to Fort Riley. He reported to Fort Riley on 10 January 1985, approximately 35 days after he departed Korea.
On 16 January 1985, he went AWOL and remained absent until he surrendered to military authorities at Fort Bragg on 26 February 1985, where charges were preferred against him for the AWOL offense.

On 27 February 1985, 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 acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. He further declined to submit a statement or explanation in his own behalf.

The appropriate authority approved his request on 22 March 1985 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions while on excess leave, on 4 April 1985, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 7 years, 10 months and 25 days of total active service and had 48 days of lost time due to AWOL. He was awarded the Army Commendation Medal first oak leaf cluster, the National Defense Service Medal, the Army Service Ribbon, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

A review of the available records fails to show that the applicant ever sought the assistance of his chain of command or that he ever surfaced his alleged problems to his chain of command. There is no evidence that he ever applied for a hardship discharge or compassionate reassignment as well.

There is no indication in the available records to show that he ever applied to the Army Discharge review Board 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 courtmartial, 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 believes 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, his years of service, his pay grade and his overall record of service.

4. The Board has noted the applicant’s contentions and finds that they are not sufficiently mitigating to warrant relief under the circumstances. While he may have been experiencing personal problems at the time, there is no evidence to show that he made any attempt to seek assistance from his chain of command to resolve his problems or at least offer an explanation to explain his absence and misconduct. Additionally, given his grade at the time and his years of service, it is reasonable to expect that he would have known of the consequences he could expect to face for such misconduct.

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

__fe ____ ___slp___ __eja ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075164
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/10/22
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1985/04/04
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.