MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 October 2002
         DOCKET NUMBER: AR2002076143

         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. Nancy L. Amos		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: That his discharge under other than honorable (UOTHC) be upgraded to honorable.

APPLICANT STATES: That in March 1979 (sic) he enlisted in the Arkansas Army National Guard (ARARNG) to fulfill his duties to his country. At the time he was married and had two young children. He trained as a quartermaster and completed his training with honors. Upon returning to his hometown, he began searching for full-time employment; however, none of the perspective employers would hire him because of the commitment he had to give to the ARNG each month. During this time, he also attempted to go full-time into the ARNG but this never transpired. Things became very difficult financially. As a young, naïve person, he then made a terrible decision. He chose to leave the ARNG in order to support his family. He was not mature enough to understand the full consequences of his actions at the time. He had no parents or role models to go to for advice. When he failed to report for weekend training, he was told to report for full-time active duty. Since he did not join the Army, and again not understanding the potential consequences, he did not report for duty. Nearly two years later he was arrested on an absent without leave (AWOL) warrant. He had no idea one even existed. He has been an outstanding citizen since his discharge. For the past seven years he has been employed by the Stuart Police Department in Stuart, FL. He would like to work as a police officer but his discharge has caused complications in his application process. He has lived with this mistake for the past 20 years and he hopes he can finally put it all behind him and move on with his career in law enforcement. Supporting evidence is as listed on the attachment to the DD Form 149.

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

He was born on 26 May 1957. He enlisted in the ARNG on 3 July 1976. His enlistment contract stated that he enlisted in the ARNG of the State of Arkansas and as a Reserve of the Army for 6 years unless sooner discharge by proper authority. He signed a statement on 3 July 1976 that he understood the satisfactory participation requirements and enforcement provisions. He was ordered to initial active duty for training in August 1976. He completed basic training and advanced individual training and was awarded military occupational specialty 76Y (Supplyman). On 11 July 1977, he was awarded primary occupational specialty 11B (Infantryman). He was promoted to Private First Class, E-3 on 11 July 1977. He was reduced to Private, E-2 on 28 November 1978 for inefficiency.

By letter dated 29 November 1978, the applicant's commander informed the State Adjutant General that, to the best of his knowledge, there was no legitimate reason for the applicant missing the scheduled drills he had missed. He was not able to locate the applicant personally and the applicant had not contacted the unit or himself concerning his recent AWOL periods. He was forwarding a request that the applicant be ordered to active duty.

Orders dated 16 April 1979 ordered the applicant to involuntary active duty with a report date to Fort Leonard Wood, MO of 29 May 1979.

The applicant's Report of Separation and Record of Service, NGB Form 22, shows he was discharged from the ARARNG (but not as a Reserve of the Army) on 28 May 1979 by reason of being ordered to involuntary active duty.

On 29 May 1979, the applicant failed to report for active duty and was reported AWOL.

By letter dated 22 June 1979, counsel responded to a 9 June 1979 letter to the applicant's wife (not available) apparently from Fort Leonard Wood, MO. Counsel stated that it was the applicant's understanding that he was discharged from military service and that he was completely unaware of being placed on active duty. He requested that he be advised at the earliest convenience if a mistake had been made in placing the applicant on active duty.

By letter dated 28 June 1979, Fort Leonard Wood, MO responded to the applicant's counsel by informing him the applicant was in an AWOL status and questions concerning his AWOL status should be referred to his National Guard unit.

On 22 November 1980, the applicant was apprehended by civil authorities. He was assigned to the Special Processing Company, U. S. Army Personnel Control Facility, Fort Knox, KY.

On 3 December 1980, the applicant underwent a mental status evaluation. He was found to have the mental capacity to understand and participate in proceedings and to be mentally responsible.

On 5 December 1980, court-martial charges were preferred against the applicant charging him with AWOL from 29 May 1979 to on or about 22 November 1980.

On 8 December 1980, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits. He to submitted a statement in his own behalf. He stated that he joined the ARNG in 1976 because he thought the Guard was the only way to go but now he felt it was a big hindrance to his civilian job and to his family. He felt a chapter 10 would be best for himself and for the ARNG.
On 8 December 1980, the applicant was placed on involuntary excess leave.

On 15 January 1981, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

On 2 March 1981, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial. He had completed a total of 8 months and 4 days of creditable active service and had 543 days of lost time.

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. A discharge UOTHC 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. 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 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. There is no indication that the request was made under coercion or duress.

3. At the time the applicant enlisted in the ARARNG in July 1976, he knew he was enlisting in the Arkansas Army National Guard and as a Reserve of the Army. He acknowledged that he knew what the participation requirements were and what the enforcement provisions were. The Board is sympathetic with his employment problems. However, in 1979 he was 22 years old and it appears he had already successfully served for about 2 years in the ARNG. His contention that he was not mature enough to understand the consequences of his actions is not credible. His contention that he had no role models to go to for advice is not credible. He could have gone to his chain of command. The evidence of record shows he never contacted his unit concerning his unexcused absences. His contention that he did not know an AWOL warrant on him existed is not credible. The evidence of record shows that a counsel for him was in contact with the Army in June of 1979 and had been informed that he was AWOL.

4. While the Board has taken cognizance of the applicant's good post-service conduct, considering the length of his AWOL and the evidence of record which shows he was aware he was AWOL, this factor does not warrant the relief requested. He should apply to the Stuart Police Department to grant a waiver of his discharge in consideration of his good post-service conduct.

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

_ _FNE _ __SLP__ ___EJA__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076143
SUFFIX
RECON
DATE BOARDED	2002/10/22
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1981/03/02
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.