MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 November 2002
         DOCKET NUMBER: AR2002076813

         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.	Antoinette Jones-Farley		Analyst

The following members, a quorum, were present:

Mr.	John N. Slone		Chairperson
Ms.	Sherri V. Ward		Member
Mr.	Melvin H. Meyer		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 essence, that his under other than honorable conditions (UOTHC) discharge be reviewed and upgraded to honorable.

APPLICANT STATES: In effect, that he believes that his UOTHC discharge is improper and inequitable. He states, that he joined the Army at the age of 17, served two years in Germany and earned the rank of E-4, in just 14 months
with no problems. He adds that the Red Cross helped to arrange emergency leave for each family emergency, which began with the death of his mother on
17 January 1979, for the care and placement of his two younger siblings and for the death of his younger brother by a drunk driver on 17 October 1979. He contends that following his last leave approval he was issued transfer orders to
A Company, 2/32 Infantry, Fort Ord, California, where he reported on 4 January 1980. He adds that he was able to complete a Non-Commissioned Officers course and issued a certificate of completion. He states, on 28 May 1981, he went absent without leave (AWOL) for 57 days, in order to save his mother’s home from foreclosure. He adds that he had no intention of going AWOL until he received numerous letters about the condition of his mother’s personal affairs. He states, after being unsuccessful in stopping the sale of his mother’s home, he turned himself into the military police. He claims he was told he would be returned to his old unit since his AWOL status was under 60 days he would receive a chapter 10, UOTHC discharge. He contends, that he was never asked why he went AWOL and until now has never provided a detailed explanation. Additionally, he submits a list of arguments/contentions, wherein he points out that he was a good soldier because of his conduct and efficiency ratings, and behavior and proficiency marks being pretty good. He contends that review of his awards, decorations, letters of commendation and promotions should have been considered. He states that the command acted improperly, by not counseling him, by not notifying him of his right to submit a statement, by issuing him a punishment that was too harsh and based on isolated acts of indiscipline. He adds the command abused its authority in giving him an UOTHC discharge for AWOL after denying him leave when he had to take care of his personal business. In addition, to him not having enough incidents to warrant discharge, he also states that his ability to serve was impaired by youth, immaturity and being mentally and emotionally stressed out over the deaths in his family.

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

On 18 January 1977, he enlisted in the Regular Army for a period
of 3 years. He completed basic combat training and advanced individual training





and was awarded military occupational specialty (MOS) 11B10 (Infantryman) and further assigned to Germany for duty. He was advanced to pay grade E-4 on
1 September 1978.

On 2 October 1979, after a period of 2 years of honorable service, he immediately reenlisted for 4 years of active duty.

On 1 December 1979, he returned from Germany and was assigned to Fort Ord, California for duty.

On 3 August 1981, special court-martial charges were preferred against the applicant of being AWOL from 28 May to 23 July 1981.

On 6 August 1981, he consulted with legal counsel and voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial. In his request, he stated that he understood that his offense could result in a punitive discharge and that he understood that he would receive a UOTHC discharge. He declined to submit a statement in his own behalf. He authenticated a statement in which he acknowledged that he understood the ramifications of a UOTHC discharge. His chain of command recommended approval. On 10 August 1981, a mental status evaluation was conducted and he was cleared for administrative separation. On 14 August 1981, the separation authority approved his separation and directed issuance of a UOTHC discharge.

On 25 August 1981, he was separated with a UOTHC discharge under the
provisions of chapter 10, Army Regulation 635-200. He was credited with
4 years, 5 months and 11 days of active service and 57 days of lost time.

On 22 February 1983, the Army Discharge Review Board denied his request for upgrade of his discharge.

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 a 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. Although an honorable or a general discharge is authorized, a UOTHC discharge is normally considered appropriate.




Army Regulation 635-200 also provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

The Manual for Courts-Martial, Table of Maximum Punishments, shows that a
punitive discharge is authorized for any AWOL of more than 30 days.

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. The Board has taken cognizance of the applicant’s arguments/contentions. However, he demonstrated the capacity for honorable service by completion of basic and advanced individual training, completion of a NCO course and the completion of approximately 24 months of offense free service. There is no evidence to either substantiate the seriousness of the applicant’s family problems, to demonstrate how his AWOL alleviated the situation, or that his second request was denied. The applicant had legitimate avenues through which to obtain assistance or relief, without committing the offense that led to the separation action under review. The Board concludes that the redeeming aspects of his service do not outweigh the misconduct of record.

3. Therefore, the type of discharge directed and the reason for discharge was proper and equitable, considering the facts of the case.

4. 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.

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

__JNS __ ____SVW ___MHM_ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076813
SUFFIX
RECON
DATE BOARDED	2002.11.19
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1981.08.25
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	CH 10/UOTHC
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.	A144.0133
2.	A123.00
3.	A 93.01
4.	A 71.00
5.	A 93.09
6.