MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 November 2002                   
	DOCKET NUMBER:   AR2002075996

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Sherri V. Ward		Member	
	Mr. Melvin H. Meyer		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)

APPLICANT REQUESTS:  That his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 

APPLICANT STATES:  That he was told his discharge would be upgraded to that of an honorable after he had been discharged for 6 months; that he was young and he made a mistake.  He adds that the military was one of the best things that ever happened for him and he deserves a second chance. 

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

On 21 May 1981, he enlisted in the Delayed Entry Program (DEP).  On 16 July 1981, at age 26, the applicant was separated from the DEP and he enlisted in the Regular Army for 3 years.  Following completion of all required military training, he was awarded military occupational specialty (MOS) 64C (Military Transport Operator).  

On 27 November 1981, the applicant was assigned to Fort Benning, Georgia, for the Basic Airborne (ABN) Course.  He was permanently disqualified from the course after 3 weeks as a result of not being adaptable to ABN training; he lacked the motivation that was necessary to complete it.  On 4 January 1982, the applicant was assigned permanent duty at Fort Benning in MOS 64C.

On 3 March 1982, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed.  His punishment included a verbal reprimand and 14 days of extra duty and restriction.

On 12 April 1982, court-martial charges were preferred against the applicant for committing an assault against another soldier by striking at him with a wooden chair, a means likely to produce grievous bodily harm, for willfully disobeying a lawful order, and for wrongfully communicating a threat to injure a noncommissioned officer on 18 March 1982.

On an unknown date, the applicant consulted with legal counsel and requested discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of court-martial.  He was advised that he could receive a UOTHC discharge.  He authenticated a statement with his signature acknowledging that he understood the ramifications and effects of receiving a UOTHC discharge.  He did not submit a statement in his own behalf.  

On 1 July 1982, the approval authority approved the applicant's request for discharge under the provisions of chapter 10 and directed that he be separated with a UOTHC discharge in pay grade E-1.  

The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that, on 9 July 1982, he was separated under the provisions of chapter 10, Army Regulation 635-200 with a UOTHC discharge for conduct triable by court-martial.  He had completed 11 months and 24 days of active military service and he had no recorded lost time.

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

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 a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Although an honorable or general discharge was authorized, a UOTHC discharge was 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.  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.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable regulations. 

3.  The Board took into consideration the applicant's entire record of service and was convinced that both the reason for discharge and the characterization of service were appropriate considering the facts surrounding his discharge.

4.  The Board has taken into consideration the applicant’s contention that he was young; however, at 26 years of age, he met entrance qualification standards, to include age.  The Board found no evidence that the applicant was any less mature than other soldiers of the same age who successfully completed their military service obligation.

5.  The US Army does not have, nor has it ever had, a policy to automatically upgrade a discharge.  Each case is decided on its own merits when an applicant submits a DD Form 149 (Application for Correction of Military Record) to request a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reasons for discharge or both were improper or inequitable.  The applicant has failed to convince the Board of either.

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

__jns___  __svw___  __mhm___  DENY APPLICATION

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

INDEX

CASE ID	AR2002075996	
SUFFIX		
RECON		
DATE BOARDED	20021119	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19820709	
DISCHARGE AUTHORITY	AR 635-200, Chap 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.0133	
2.		
3.		
4.		
5.		
6.