MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 October 2003
         DOCKET NUMBER: AR2003084166

         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Hubert O. Fry		Member
Ms. Mae M. Bullock		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 be upgraded, his pay grade restored, that all records related to his period of AWOL (absent without leave) be placed in the restricted portion of his OMPF (official military personnel record) and all derogatory remarks be purged from his record. He also requests that the Board grant him a personal appearance.

APPLICANT STATES: That he was a well motivated soldier who was rapidly promoted and given responsibilities which exceeded his grade. He soldiered well and handled his responsibilities in the highest tradition of the Army. He states that his problems started in his last assignment, where his first sergeant disliked him because of the duties he performed processing evaluation reports during his prior assignment.

Further he states that during this assignment his mother, who was and is an alcoholic and prescription drug addict, started beating his sister. His sister also had also started taking drugs herself. He states that he repeatedly requested compassionate reassignment to no avail. He then requested a hardship discharge, with the same results. At that point, he departed AWOL to attempt to care for and protect his mother and sister.

He further states that he did not know that he did not have a general discharge until 2002 due to the fact that his paper work was sent to his mother who withheld it from him. He states that he had not needed the discharge document until he started law school.

The applicant also states that his civil rights were violated and that the administrative discharge process under the Army Regulation 635-200, chapter 10 is arbitrary and that he was not afforded a board of officers before he was issued his under other than honorable conditions discharge. He contends that a less than honorable discharge was almost mandated by the way the delegation of authorization existed at his command. The applicant contends that his military counsel did not properly advise him of his rights and options and that his first sergeant actively sought to discredit him and failed to present all relevant information to the discharge authority.

In support of his request the applicant submits a lengthy personal statement outlining his contentions and request for review, excerpts from his military records, case law which he deems relevant to his contentions, and a post service resume. He also submits an uncompleted Affidavit Guide for reassignment or discharge, a letter from the Red Cross, attesting to the fact that his mother was hospitalized, and a letter from his mother’s doctor with commitment papers.




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

He entered active duty on 12 April 1983 and reenlisted on 27 October 1986 as a sergeant (E-5).

The applicant went AWOL on 22 March 1987 and remained absent until 4 May 1987. Court-martial charges were preferred for this period of AWOL on 6 May 1987.

On 6 May 1987, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulations 635-200, chapter 10. He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge. The applicant waived his right to submit a statement on his own behalf.

The discharge authority accepted his request and directed that he be reduced to the lowest enlisted pay grade and receive an UOTHC discharge.

The applicant was discharged on 17 June 1987 under other than honorable conditions for the good of the service in lieu of trial by court-martial. He had a total of 4 years and 24 days of creditable service with 43 days lost due to AWOL and 43 days of excess leave. His awards are shown as the Army Achievement Medal, the Expert Badge with Rifle and Hand Grenade Bars, the Army Service Ribbon, and the Noncommissioned Officer Professional Development Ribbon.

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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. The regulation, as in effect at the time, stated that a service member had the right to a hearing before a board of officers only if they had six or more years of service. A discharge under other than honorable conditions is normally considered appropriate.

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

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DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and 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. There is no indication that the request was made under coercion or duress or that any of his rights were violated.

2. While the applicant has outlined his contentions, what he considers as violations of his rights, and submits documents showing that his mother suffered from mental illness while he was on active duty, the OMPF contains no evidence of any request for a compassionate transfer or request for a hardship discharge.

3. Further, the case law he cites pertains to cases of involuntary separation not as in his case voluntary resignations.

4. His allegation that he had inadequate counsel is not accepted. In his voluntary request to be discharged, he acknowledged that he was counseled, he was made aware of the consequences of this type of discharge and waived his right to submit a statement on his own behalf. It was the applicant’s responsibility to raise any mitigating matters that might have been considered in characterizing his discharge. He elected not to do so.

5. Although he requests a personal appearance before the Board, there is no statutory or regulatory right to a formal hearing. The Board receives over 15,000 applications each year, but normally grants only approximately 20 formal hearings a year. Formal hearings are granted only when the Board determines that a case is so complex, or the records so incomplete that only sworn testimony can provide the necessary information. The Board does not find that a formal hearing is warranted in this case.

6. 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.

7. 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.

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

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INDEX

CASE ID	AR2003084166
SUFFIX
RECON
DATE BOARDED	20031016
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	Upgrade family problems
2.	Restoration of grade
3.
4.
5.
6.