MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 

	BOARD DATE:             19 August 1998                 
	DOCKET NUMBER:     AC96-08125

	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 following members, a quorum, were present:


Ms.
June Hajjar

Chairperson

Mr.
Curtis W. Barbee Jr.

Member

Ms.
Margaret K. Patterson

Member

	Also present, without vote, were:


Mr.
Loren G. Harrell

Director

Mr.
Joseph A. Adriance

Analyst

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 under other than honorable conditions discharge (UOHC) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was 18 years old; that he refused to sign an Article 15; that he has matured and been a good citizen since his discharge; and that he is employed and providing for his family.

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

On 2 April 1980 the applicant entered the Regular Army for 3 years at the age of 17.  He successfully completed One Station Unit Training (OSUT) at Fort Sill, Oklahoma, was awarded military occupational specialty (MOS) 13B 
(Cannon Crewman), and was assigned to overseas duty in Germany for his first permanent duty station.

The applicant’s record documents no individual acts of valor, achievement or service warranting special recognition and shows the highest grade he held on active duty was private/E-2.

The evidence of record indicates that court-martial charges were preferred against the applicant for wrongfully damaging government property; making a false statement; and for having in his possession a switchblade knife.  On 
16 June 1981, 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.  This request was made after the applicant had been advised by counsel of the basis for his contemplated trial by court-martial, the maximum permissible punishment, and of the possible effects of a UOHC.  In addition, the applicant stated he understood the elements of the offenses for which he was charged and by making the request he was admitting his guilt to the charge against him.  The applicant also attested to the fact that he fully understood he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veteran Affairs, and that he may be deprived of veterans benefits under state and federal law.

The applicant’s unit commander recommended approval of the applicant’s request for discharge for the good of the service, in lieu of trial by court-martial and recommended the applicant’s be issued a UOHC.  On 13 July 1981 the appropriate authority approved the applicant's request for discharge and directed issuance of a UOHC.  Accordingly, on 6 August 1981 the applicant was discharged after completing 1 year, 4 months, and 5 days of active military service.

On 29 October 1986 the applicant personally appeared before the Army Discharge Review Board (ADRB) to request an upgrade of his discharge.  On 
1 December 1986 the ADRB denied the applicant’s request and found 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.  

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. While the Board has taken cognizance of the applicant's age, his refusal to sign an Article 15, his employment record, and his good post-service conduct; none of these factors, either individually or in sum, warrant the relief requested. The applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  After consulting with legal counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The Board also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.

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