MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 4 September 2003
                  DOCKET NUMBER: AR2003088730

         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:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Frank C. Jones		Member
Ms. Barbara J. Ellis		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, that he be given back pay for his leave and that he be given the funds he was promised for schooling.

APPLICANT STATES: In effect, that he did not get the 30 days of leave per year or the money he was promised for schooling. Additionally, he did not get a separation physical. He also states that the last time he appeared before a review board, one person voted to grant him an upgrade of his discharge.

EVIDENCE OF RECORD: The applicant's military records, though somewhat reconstructed and incomplete, show:

He enlisted at Fort Hamilton, New York, on 30 November 1979 for a period of 3 years and training as an infantryman. He acknowledged that those were the only promises made to him. He successfully completed his training and was transferred to Korea.

He completed his tour in Korea and received orders transferring him to Fort Carson, Colorado, with a report date of 10 June 1981. He failed to report as ordered and was reported as being absent without leave (AWOL). He remained absent until he surrendered to military authorities at Fort Hamilton on 20 August 1981, where charges were preferred against him for the AWOL offense.

On 26 August 1981, 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. 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 not to submit a statement in his own behalf.

He also underwent a mental status evaluation and was deemed mentally responsible. There is no evidence in the available records to show that he underwent a separation physical examination; however, there is a memorandum for record indicating that the applicant declined to take a physical examination after being advised that he should undergo a complete physical examination prior to discharge.

The appropriate authority (a major general) approved the request for discharge on 2 September 1981 and directed that he be discharged under other than honorable conditions.

Accordingly, while on excess leave, he was discharged under other than honorable conditions on 22 September 1981, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 7 months and 14 days of total active service and had 69 days of lost time due to AWOL.

On 1 May 1986, 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 he was experiencing severe emotional distress upon his return from Korea and was unable to obtain the help he needed. Because of the emotional distress, he too quickly requested a discharge under chapter 10. He requested and was granted a personal appearance before the ADRB Traveling Panel in New York on 24 September 1987. After hearing testimony from the applicant and his counsel, the ADRB determined that he had been properly and equitably discharged and the majority (four out of five) voted 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.

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 applicant's contentions that he was entitled to back pay for leave, educational benefits and that he was denied a physical examination at separation have been noted by the Board and appear to be without merit. The evidence of record shows that he waived a physical examination at separation and while there is no indication in his records of any promises being made in regards to educational benefits, such benefits are administered by the Department of Veterans Affairs and are contingent upon a separation under honorable conditions. The applicant has also failed to show that he was denied his leave benefits while on active duty.

5. 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.

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.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__fcj____ __bje ___ __rvo ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003088730
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/09/04
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1981/08/22
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.