MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 April 2003
	DOCKET NUMBER:   AR2002082224

	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. John N. Slone | | Chairperson
| Mr. Thomas Lanyi | | Member
| Mr. Bernard P. Ingold | | 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:  That at the time of his discharge he declined legal counsel and as a result he got a discharge lower than he thought he would get.

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

He enlisted in Louisville, Kentucky, on 28 July 1981, for a period of 4 years, training as a cannon crewman, assignment to Fort Riley, Kansas, and a $5,000 cash enlistment bonus.  He completed his training at Fort Sill, Oklahoma and was paid his enlistment bonus on 15 October 1981.  He was transferred to Fort Riley on 23 October 1981.  He was advanced to the pay grade of E-3 on 1 March 1982.

On 22 April 1982, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 2 April to 7 April 1982.  His punishment consisted of a reduction to the pay grade of E-2 (suspended until 18 October 1982), a forfeiture of pay, extra duty and restriction.

On 1 December 1982, NJP was imposed against him for possession of marijuana.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, extra duty and restriction.

On 6 December 1982, the applicant's commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct, commission of a serious offense.  He cited as the basis for his recommendation the applicant's arrest for possession of marijuana, his disciplinary record, his appearing on the military police blotter for arrests by civil authorities on numerous occasions(failure to appear in court, parking tickets, illegal possession of alcohol, speeding, illegal passing on double yellow line, disrespect towards a police officer), his disregard for civil and military authority and his failure to respond to numerous counseling sessions. 

On 7 December 1982, the applicant acknowledged that he had been advised of his rights, the basis for his contemplated separation, and that he understood he could receive either a general discharge or a discharge under other than honorable conditions.

On 15 December 1982, after consulting with counsel, the applicant waived his rights, declined to submit a statement in his own behalf and acknowledged that he understood the consequences of receiving a discharge under other than honorable conditions.

The appropriate authority (a major general) approved the recommendation for discharge on 19 January 1983 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 26 January 1983, under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct – commission of a serious offense.  He had served 1 year, 5 months and 24 days of total active service and had 5 days of lost time due to AWOL.

There is no indication in the available records to show 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.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, drug abuse, and desertion or absence without leave.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  Additionally, 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.  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 administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The Board has noted the applicant’s contentions.  However, they are not supported by the evidence submitted with his application or the evidence of record.  The evidence of record clearly shows that he was advised of his rights and acknowledged accordingly with his signature.  The Board also finds that he had an undistinguished record of service with no mitigating factors that would warrant an upgrade.  Accordingly the Board finds no evidence of error or injustice in his case.

4.  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

___js____  __bpi ___  __tl_____  DENY APPLICATION

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

INDEX

CASE ID | AR2002082224
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 2003/04/29
TYPE OF DISCHARGE | UOTHC
DATE OF DISCHARGE | 1983/01/26
DISCHARGE AUTHORITY | AR635-200, para 14-12c
DISCHARGE REASON | Misconduct
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1.  626 | 144.6000/a60.00
2. |
3. |
4. |
5. |
6. |