MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF
       

                  BOARD DATE: 23 October 2003
                  DOCKET NUMBER: AR2003088724

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Arthur A. Omartian		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, absent without leave (AWOL) period, entered in Item 29 (Dates of Time Lost During This Period) of his separation document (DD Form 214) be removed, and that Item 12f (Foreign Service) of the DD Form 214 be corrected to reflect his completed overseas service.

APPLICANT STATES: In effect, that he was on leave when he was reported to be AWOL. He claims that he received a letter from Oklahoma that requested him to appear. However, he called his unit and requested that he not be required to appear. He claims that he submitted statements in his own behalf, but he was later told that no statements had been submitted and that he had agreed to be discharged. He also states that he served overseas from 1993 to 1994 and that he would like this service documented on his separation document. The applicant submits no documents in support of his application, but he does claim that cannot get a job and he requests that his overall record of service be considered.

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

On 12 February 1993, he enlisted in the Regular Army for four years. He was trained and served in military occupational specialty (MOS) 12B (Combat Engineer) and the highest rank he attained while serving on active duty was specialist four (SP4).

The applicant’s record confirms that he completed an overseas tour in Korea from 12 June 1993 through 11 June 1994. It also shows that during his tenure on active duty, he earned the National Defense Service Medal, Army Service Ribbon, and Army Achievement Medal (2nd Award).

On 19 June 1995, the applicant departed his unit at Fort Hood, Texas without authority and he was placed in an AWOL status. He remained away until returning to military control on 17 October 1997.

On 21 October 1997, a court-martial charge sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for being AWOL from on or about 19 June 1995 to on or about 17 October 1997.

On 23 October 1997, the applicant consulted legal counsel and was advised of
the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions (UOTHC) discharge, and of the procedures and rights that were available to him. After receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

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In his request for discharge, the applicant indicated that he understood the elements of the offense with which he was charged and that he was guilty of the charge against him or of a lesser included offence contained therein that would also authorize the imposition of a punitive discharge. He also stated that he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

On 29 January 1998, the separation authority approved the applicant’s request for discharge. He also directed that the applicant receive an UOTHC discharge and that he be reduced to the lowest enlisted grade.

On 18 February 1998, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial. At the time of his discharge, he had completed 2 years, 7 months, and 26 days of creditable active military service and he had accrued 850 days of time lost due to AWOL.

On 2 February 2002, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade to his discharge. On 3 April 2002, the ADRB found both the characterization and reason for the applicant’s discharge to be proper and equitable and it voted to deny the applicant’s request.

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-marital. A discharge under the 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 claim that his period of AWOL should be removed and his supporting argument were carefully considered. The applicant’s overall record of service and accomplishments were also evaluated during this review.

2. The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, and after consulting legal counsel, he voluntarily requested discharge, in lieu of trial by court-martial. In doing so, he admitted guilt to an offense under the UCMJ that authorized a punitive discharge.

3. Notwithstanding his claims to the contrary, there is insufficient evidence to show that the applicant was improperly charged with being AWOL. The evidence shows that the he was properly discharged in accordance with the applicable law and regulation in effect at the time. It further confirms that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Finally, it appears that the applicant’s discharge accurately reflects the overall quality of his service.

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.

6. The evidence does show that the applicant’s 18 February 1998 DD Form 214 does not properly reflect his completed foreign service in Item 12f. However,
this correction does not require Board action and will be accomplished administratively as outlined in the note below.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

NOTE: The Army Review Boards Agency (ARBA), Support Division, St. Louis, is requested to furnish the individual concerned a DD Form 215 (Correction to
DD Form 214) that amends Item 12f (Foreign Service) of his 18 February 1998 DD Form 214 to read “1 year, 0 months, and 0 days”.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__JHL___ __AO__ __MKP _ DENY APPLICATION

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

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INDEX

CASE ID	AR2003088724
SUFFIX
RECON
DATE BOARDED	2003/10/DD
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1998/02/18
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1021	100.0000
2. 281	126.0400
3.
4.
5.
6.