MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 February 2003
         DOCKET NUMBER: AR2002076226

         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:

Ms. Joann H. Langston		Chairperson
Mr. Lester Echols		Member
Mr. Allen L. Raub		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 either a general discharge or a discharge by reason of physical disability.

APPLICANT STATES: In effect, that his discharge was unjust because he was told that it would be upgraded to honorable within 6 months of his discharge and because his state of mind prior to enlistment was not taken into consideration. He further states that he did not want to enlist at the time but had no choice under the circumstances. He also states that he was ill-prepared mentally to be in the Army and did not receive the medical assistance he needed at the time to deal with what he considered a miserable and depressing environment. He further states that he suffered from hallucinations, insomnia, and depression and was continually denied the medications he needed to handle his situation. In support of his application, he submits documernts from a community mental health service indicating that he has been diagnosed with a Schizoaffective Disorder, that he lives in a homeless outreach program and is currently on medication.

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

He enlisted with parental consent on 3 June 1980 for a period of 3 years, training as an infantryman and assignment to the Ist Infantry Division. He completed his basic combat training at Fort Jackson, South Carolina, and was transferred to Fort Riley, Kansas, to undergo his advanced individual training (AIT) as an infantryman. He completed his AIT and remained at Fort Riley. He was advanced to the pay grade of E-2 on 3 December 1980.

The available records show that he went absent without leave (AWOL) from 16 January through 18 January and 21 April to 22 April 1981. However, the record is silent as to any punishment imposed for those offenses.

He was advanced to the pay grade of E-3 on 3 June 1981 and on 11 June, he again went AWOL through 14 June 1981. He again departed AWOL from 29 June through 7 July and 14 July through 15 July 1981. Nonjudicial Punishment was imposed against him for the three AWOL offenses on 20 July 1981. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 90 days), a forfeiture of pay and correctional custody for 30 days (15 days suspended for 90 days). On 21 July 1981, the commander vacated the suspended portion of his punishment.

On 22 July 1981, the applicant went AWOL and remained absent until he was returned to military control at Fort Carson, Colorado, on 7 January 1982, and charges were preferred against him for the AWOL offense.

The applicant underwent a mental status evaluation on 13 January 1981 and was deemed to be mentally responsible for his actions.

On 19 January 1982, 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. Additionally, he acknowledged that he understood that there were no automatic provisions for upgrading a discharge under other than honorable conditions and that the percentage of such discharges upgraded by the ADRB and this Board were very low. He further elected to submit a statement in his own behalf, whereas, he asserted, in effect, that he could not adjust to military life, that he was not receiving the treatment he needed, and that he was being abused by his chain of command. He also asserted that he was too young and had too many problems to deal with at that point in his life and simply wanted out of the Army so he could start a family and a new life.

The appropriate authority (a brigadier general) approved the request for discharge on 2 February 1982 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 3 March 1982, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 2 months and 4 days of total active service and had 186 days of lost time due to AWOL.

On 22 February 1983, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to honorable. He contended at that time that his discharge was unjust because of his age at the time, his immaturity, bad health, his self-admitted unsuitability, and his moral convictions, which rendered it impossible for him to fulfill his mission as an infantryman. He requested and was granted a personal appearance before the ADRB Traveling Panel in Cincinnati, Ohio, on 17 April 1984; however, he failed to appear as scheduled and his application was processed based on a review of his records. The ADRB determined that he had been properly and equitably discharged and voted unanimously to deny his request.

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 and there have never been any provisions for an automatic upgrade of such a discharge.

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 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 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 a reasonable explanation to explain his 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

___jhl __ __le ____ ___alr___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076226
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/02/20
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1982/03/03
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.