MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:                              
	DOCKET NUMBER:   AC97-05909

	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:



	

	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 discharge under other that honorable conditions (UOHC) be upgraded to either a general/under honorable conditions discharge (GD) or an honorable discharge (HD).

APPLICANT STATES:  In effect, that he wanted to join the Army to be a military policeman; that his recruiter told him he could change his MOS anytime; that his unit leadership would not allow him to change MOS; and that when he showed an interest in getting out for failure to adapt he began being punished unfairly.

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

On 13 March 1995 the applicant entered the Regular Army for 4 years.  He successfully completed One Station Unit Training at Fort Benning, Georgia, was awarded military occupational specialty (MOS) 11B (Infantryman), and assigned to Fort Drum, New York for his first permanent duty station.

The applicant’s record documents that the highest grade he held on active duty was private/E-2 and that he had received the Army Service Ribbon and the National Defense Service Medal.  The record contains no documented acts of valor, achievement, or service warranting special recognition.  The record is also void of any disciplinary infractions prior to the incidents which ultimately lead to the applicant’s separation.

The evidence of record indicates that on 14 February 1996 a 
DD Form 458 (Charge Sheet) was prepared preferring four charges with a total of six specifications against the applicant for violation of Articles 86, 90, 115 and 134 of the UCMJ.  The first charge contained three specifications: the first was for leaving guard duty without authority on 
29 August 1995; the second was for failure to go to his appointed place of duty on 14 September 1995; and the third was for failing to go to his prescribed place of duty on 
28 September 1995.  The second charge was for disobeying a lawful order from a superior commissioned officer on 
16 September 1995.  The third charge was for feigning physical disablement to avoid a training exercise on 16 October 1995, and the fourth charge was for wrongfully straggling while accompanying his unit on maneuvers on 16 September 1995.


The record also contains documented evidence that on 
4 March 1996 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 discharge.  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.

25 March 1996 the appropriate authority approved the applicant's request for discharge and directed issuance of a UOHC.  Accordingly, on 29 March 1996 the applicant was discharged after completing 1 year and 17 days of active military service.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge.

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, and applicable law and regulations, it is concluded:

1.  The Board found no evidence of record or independent evidence submitted by the applicant which supported his contention that his being unfairly punished because he wanted to change his MOS or leave the Army was so significant it impaired his ability to serve and mitigated his misconduct.

2.  The evidence of record is clear, and shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge and after consulting with legal counsel, he voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  

3.  The discharge proceedings were conducted in accordance with law and regulation applicable at the time.  The reason for and the character of the discharge are commensurate with the applicant's overall record of military 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 the aforementioned 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

                       DENY APPLICATION




						Loren G. Harrell
						Director