MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 August 2003
         DOCKET NUMBER: AR2003091660

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas Lanyi		Member
Mr. Harry B. Oberg		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, that his Under Other Than Honorable Conditions Discharge be upgraded to a General (Under Honorable Conditions) Discharge.

APPLICANT STATES: In effect, that he requested a hardship discharge because of his wife's mental condition and instead he was given an under other than honorable conditions discharge. He further states that he had to be home to take care of his two children.

The applicant submitted a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty; a self-authored, Letter of Issues, dated 17 June 2001; a copy of a DA Form 4187, Personnel Action, dated 6 December 1979; a copy of his wife's death certificate; and a character reference letter, dated 4 March 2003, in support of his request for an upgrade of his discharge.

The applicant also submitted a Clinical Summary-Confidential, dated 27 March 2003. The applicant revealed to the psychologist, and it is reflected in the Clinical Summary-Confidential, that he had refused to return to his Army base in Germany because of the serious health condition of his wife and concern for his two young sons who were under his care. He stated to the psychologist that he was able to travel to the United States on two occasions because of his wife's illness due to her abuse of alcohol and drugs. Following his second return to the United States, he was hopeful he would get stationed nearby his family so that he could help take care of his children as well as his wife's recovery. He was not allowed to do this and was ordered to return overseas. Because of his refusal to return to Germany, he was subsequently given a less than honorable discharge and ushered out of the military.

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

The applicant enlisted in the Army Reserve for six years on 28 September 1977. On 23 June 1978, the applicant enlisted in the Regular Army for a period of 4 years. He successfully completed basic combat training at Fort Jackson, South Carolina, and advanced individual training at Fort Benning, Georgia. On completion of his advanced training, he was awarded the military occupational specialty 11B, Light Weapons Infantryman.

The applicant was assigned overseas to Germany and arrived there on 26 October 1978. He was assigned to Company C, 2nd Battalion, 22nd Infantry.

A DA Form 2475-2, Personnel Data – SIDPERS [commonly referred to as a PDC], on file in the applicant's personnel records, shows that the applicant was

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given ordinary leave and departed his unit on 23 July 1979. On 1 September 1979, the applicant's status was changed from ordinary leave to absent without leave (AWOL) by his unit. He returned to and surrendered himself to his unit on 11 September 1979.

On 6 December 1979, the applicant submitted a request for a hardship discharge, giving his wife's mental condition as the reason for the request. Among the enclosures listed, but not available for the Board's review, are five letters from the American Red Cross, two letters from members of the clergy, two letters from what are believed to be doctors of medicine, and a copy of a listing showing drugs which were prescribed to the applicant's wife. The applicant's unit commander recommended that the hardship discharge be approved on the same date and forwarded the request for consideration by the approval authority. The PDC also shows that on 19 December 1979, the applicant was granted ordinary leave. Because he failed to return to his unit at the conclusion of this leave, on 29 December 1979, the applicant was reported AWOL by his unit. The applicant remained absent from his unit and was dropped from the rolls of his organization on 29 January 1980.

There is no evidence in the applicant's personnel records, or on the PDC, that he attached himself to any unit on his second return to the United States for the purposes of applying for a compassionate reassignment as he inferred to the psychologist during a therapy session.

The applicant surrendered himself to military authorities at Fort George G. Meade, Maryland, on 17 March 1980. He was assigned to the US Army Personnel Control Facility, Fort Dix, New Jersey, to be processed back into the Army.

The applicant again departed AWOL from the Personnel Control Facility on 21 April 1980. The unit dropped him from the rolls of the organization on 23 April 1980.

On 7 August 1980, the applicant was apprehended by civil authorities in Raleigh, North Carolina, and was returned to military control at Fort Bragg, North Carolina, on 8 August 1980. He was assigned to the Personnel Control Facility at Fort Bragg.

The applicant’s record does not contain his request for discharge for the good of the service under Army Regulation (AR) 635-200, chapter 10, and all documents related to his discharge from the Army. The applicant’s record contains a

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properly constituted DD Form 214. This document identifies the reason and authority, character of service, and type of discharge certificate that was issued.

The applicant was discharged on 24 October 1980 in the rank and pay grade, Private, E-1, under the provisions of Army Regulation 635-200, chapter 10, Administrative discharge-conduct triable by court-martial. His service was characterized as under other than honorable conditions and he was provided an under other than honorable conditions discharge certificate. On the date of his discharge, he had 1 year, 9 months and 2 days active Federal service with 212 days lost due to AWOL and 64 days excess leave.

The record shows that the highest rank and pay grade that the applicant attained while in service was Private First Class (PFC), E-3. The record contains no documented acts of valor, achievement, or service warranting special recognition.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

The applicant's wife's death certificate shows that she died on 23 July 1990. This occurred over nine years after the applicant was discharged from the service.

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, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ. A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

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:

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1. Notwithstanding the absence of the applicant's request for discharge for the good of the service, the Board presumed Government regularity in the discharge process. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. There is no indication that the request was made under coercion or duress.

2. The Board noted that procedurally, the applicant would have to have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant would have to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial. In doing so, the applicant would have had to admit guilt to the stipulated offense(s) under the UCMJ. Therefore, it is a logical conclusion that it was the applicant who requested discharge for the good of the service to avoid the possibility of a punitive discharge and having a felony conviction on his record, and he was not involuntarily "ushered out of the military."

3. The applicant's wife's death certificate shows the date of death as 23 July 1990. Her death occurred over nine years after the applicant was discharged from the service to avoid trial by court martial.

4. The Board noted that the applicant submitted a request for hardship discharge on 6 December 1979 and his commander allowed him to take ordinary leave on 19 December 1979. On the leave's expiration the applicant failed to return to his unit and was reported AWOL by his unit.

5. The evidence of record shows that the applicant was granted two periods of ordinary leave while he was stationed in Germany. On each of the two occasions, he failed to return on the scheduled date of the expiration of his ordinary leave and was reported as AWOL and was subsequently dropped from the rolls of his unit.

6. The Board does not condone the applicant’s repeatedly going AWOL, from his unit and from the personnel control facilities that he was assigned to on his returns from his AWOL stints, to try and resolve family issues, especially in view of the fact that it is apparent that his chain of command and others were actively assisting him to resolve the situation.

7. The Board determined that the applicant had the capacity to be a satisfactory soldier, as evidenced by his promotion to PFC, with a waiver, when he had completed just over 10 months service; but chose to complicate his situation by failing to return to his unit at the expiration of approved leaves which led to his being dropped from the rolls of his unit.

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8. 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

__hbo___ __tl_____ __ao____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003091660
SUFFIX
RECON
DATE BOARDED	2003/08/28
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1980/10/24
DISCHARGE AUTHORITY	AR 635-200, chapter 10
DISCHARGE REASON	Conduct triable by court-martial.
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/ A70.00
2. 708	144.7100/ A71.00
3.
4.
5.
6.