ABCMR Memorandum of                                                             AR2002078436
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 February 2003
	DOCKET NUMBER:   AR2002078436

	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. Samuel A. Crumpler | | Chairperson
| Ms. Regan K. Smith | | Member
| Mr. Antonio Uribe | | 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 discharge under other than honorable conditions be upgraded to a general discharge.

APPLICANT STATES:  In effect, that at the time of his court-martial, he was told that his discharge would be upgraded to a general discharge, under honorable conditions.  He further states that after working for the same company for 19 years, the company is now making cutbacks and he now needs his report of separation (DD Form 214) stating that he was discharged under honorable conditions. 

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

He enlisted in Baltimore, Maryland, on 8 November 1977 for a period of 3 years and training as a stock control specialist.  He successfully completed his training and was transferred to Fort Eustis, Virginia.  

On 31 October 1978, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order from a superior commissioned officer and for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay (suspended for 3 months).

The applicant was transferred to Korea on 3 September 1979.  On 23 June 1980, NJP was again imposed against him for two specifications of failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-2 (suspended for 60 days), a forfeiture of pay and extra duty.  Although not explained in the available records, the suspended portion of his punishment (reduction) was vacated on 29 January 1980.

He was advanced back to the pay grade of E-3 on 1 March 1980 and to the pay grade of E-4 on 3 June 1980.

On 22 August 1980, he reenlisted for a period of 3 years and assignment to Fort Stewart, Georgia.  He departed Korea on 31 October 1980 and reported to Fort Stewart on 3 December 1980.   

On 5 October 1981, NJP was imposed against him for two specifications of failure to go to his place of duty and two specifications of disobeying a lawful order from a superior commissioned officer.  His punishment consisted of a forfeiture of pay (suspended for 90 days).

On 28 May 1982, he was convicted by a special court-martial of being absent without leave (AWOL) from 19 March to 23 March and from 1 April to 29 April 1982.  He was sentenced to confinement at hard labor for 45 days and reduction to the pay grade of E-2.

On 17 August 1982, charges were preferred against the applicant for 13 specifications of failure to go to his place of duty, one specification of being AWOL from 19 July to 21 July 1982, one specification of disobeying a lawful order from a superior noncommissioned officer, and one specification of operating a motor vehicle while drunk. 

On 13 September 1982, 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.  He further elected to not to submit a statement in his own behalf.   

The applicant underwent a mental status evaluation and was determined to be mentally responsible.

The appropriate authority (a brigadier general) approved his request on 21 September 1982 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 1 October 1982, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 4 years, 9 months and 22 days of total active service and had 34 days of lost time due to AWOL.

A review of the applicant's records, as well as the administrative discharge proceedings, fails to show that he was ever informed of any automatic provisions for an upgrade of his discharge.  

There is no indication in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within 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 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.  There was not then, nor is there now, any provisions for an automatic upgrade of such a 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:

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.

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 his otherwise undistinguished record of 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.

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

___rks __  __au____  ___sac __  DENY APPLICATION

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

INDEX

CASE ID | AR2002078436
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 2003/02/11
TYPE OF DISCHARGE | UOTHC
DATE OF DISCHARGE | 1982/10/01
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. |