MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 March 2003
         DOCKET NUMBER: AR2002079164

         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. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		Member
Ms. Margaret V. Thompson		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 experiencing personal problems at the time of his service because his mother was sick and his wife was an addict. He further states that he spoke to his captain several times regarding his hardship and received no help. It was just too much for him to deal with at the time.

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

He enlisted at Fort Hamilton, New York, on 18 September 1979, for a period of 4 years and training as a wire systems installer/operator.

He completed his basic combat training at Fort Jackson, South Carolina, and was transferred to Fort Gordon, Georgia, for his advanced individual training (AIT). He completed his AIT and received orders transferring him to Fort Lewis, Washington, with a report date of 2 January 1980.

On 11 January 1980, while assigned to the replacement detachment, the applicant went absent without leave (AWOL) and remained absent until 1 February 1980. The record is silent as to any punishment imposed for that offense.

On 7 March 1980, he again went AWOL and remained absent until he was arrested and confined by civil authorities at Riker's Island Correctional Facility, New York, on 7 February 1982.

The applicant was returned to military control on 12 January 1983 and again went AWOL on 13 January 1983. He was again apprehended by civil authorities for robbery on 1 March 1983 and received a 2 to 6 year sentence. He was confined at the Lincoln Correctional Facility in Manhattan, New York.

He was returned to military control at Fort Dix, New Jersey, on 2 January 1985 and again went AWOL on 3 January 1985. He remained absent until he surrendered to military authorities at Fort Dix on 14 January 1985.

Charges were preferred against him on 16 January 1985 for being AWOL from 7 April 1980 to 12 January 1983, from 13 January 1983 to 2 January 1985 and from 3 January to 14 January 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 and also declined a separation medical examination.

The appropriate authority approved his request 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 28 February 1985, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 6 months and 15 days of total active service and had approximately 1,787 days of lost time due to AWOL and civil confinement.

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.

A review of the available records fails to show that the applicant ever sought the assistance of his chain of command or ever applied for a hardship discharge or compassionate reassignment.

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. 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 had personal problems, there is no evidence that he attempted to resolve the problems through his chain of command, prior to going AWOL. Additionally, after going AWOL, he resorted to criminal 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

___jlp ___ __mvt___ __ao____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002079164
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/03/18
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1985/02/28
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.