MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 


	BOARD DATE:               16 September 1998               
	DOCKET NUMBER:       AC-96-07567

	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.




	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:  In effect, that his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that alcoholism was the primary reason for his misconduct and that since attending AA meetings he discovered what damage his alcoholism had caused.

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

On 2 February 1976 the applicant entered the Regular Army for 3 years at the age of 19.  He successfully completed basic training at Fort Dix, New Jersey and advanced individual training (AIT) at Fort Jackson, South Carolina.  Upon completion of AIT the applicant was awarded military occupational specialty (MOS) 71L (Administrative Specialist) and assigned to Fort Leonard Wood, Missouri for his first permanent duty station.

The applicant’s record indicates the highest grade he held on active duty was specialist/E-4.  The record documents no individual acts of valor, achievement, or service warranting special recognition. 

The evidence of record indicates that on 21 July 1977 a DD Form 458 (Charge Sheet) was prepared preferring two court-martial charges against the applicant for violation of Articles 128 and 91 of the UCMJ.  The first charge was for assault for stabbing a German national with a pocket knife on 17 July 1977; and the second charge was for willfully disobeying a lawful order on 17 July 1977. 

On 18 August 1977, subsequent to court-martial charges being preferred as outlined above, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ.  The NJP was for failing to be at his prescribed place of duty.  His punishment for this offense included a reduction in grade to private first class/E-3 and 14 days of restriction and extra duty.

The record also contains documented evidence that on 23 August 1977 the applicant voluntarily requested discharge for the good of the service-in lieu of trial by court-martial, under the provisions of chapter 10 of AR 635-200.  The applicant’s request was made only after he had been advised, by his appointed military counsel, of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; of the possible effects of a UD if the request were approved; and of the procedures and rights available to him.



In complying with the procedures the applicant completed a statement in which he attested to the fact that the request was being made of his own free will; that he had not been subjected to coercion whatsoever by any person.  He acknowledged that he had been advised of the implications attached to the action; that he understood the elements of the offenses for which he was charged; and that he was guilty of the charge against him, or of a lesser included offense, which authorized the imposition of a bad conduct or dishonorable discharge.  The applicant also stated his understanding that he would be deprived of many or all Army benefits; that he may be ineligible for  benefits administered by the Department of Veteran Affairs; and that he may be deprived of veterans benefits under state and federal law.

On 7 September 1977 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD.  Accordingly, on 26 September 1977 the applicant was discharged after completing 1 year, 7 months and 
25 days of military service.

On 17 December 1980 the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge and found that the discharge process was proper in all respects.

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 at any time after the charges are preferred, submit a request for discharge for the good of the service in lieu of trial by court martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of a UD.

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 Board concurs with the findings and conclusions of the ADRB and presumes that the applicant's administrative separation was accomplished in compliance with applicable regulations.  There is no indication of procedural errors by the ADRB which would tend to have substantially jeopardized the applicant's rights.  



2.  The applicant’s contention that, after going through counseling, he now knows alcohol was the cause of his misconduct is not sufficiently mitigating to warrant relief.  The Board notes that the evidence of record shows  the applicant requested for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, in order to avoid a court-martial and the punitive discharge that he might have received.

3.  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 the aforementioned requirement.

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

________  ________  ________  DENY APPLICATION




						Loren G. Harrell
						Director