MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 17 June 1998
DOCKET NUMBER: AC97-09574
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 her under other than honorable conditions discharge (UOHC) be upgraded.
APPLICANT STATES: In effect that because she was a substance abuser at the time of her discharge she honestly doesnt think she was aware of the degree of her discharge; that had she been aware of the type and severity of the discharge she would have not done it without counsel.
EVIDENCE OF RECORD: The applicant's military records show:
On 21 December 1976 the applicant reenlisted in the Regular Army for 3 years at Pinder Barracks, Zirndorf, Germany for training in military occupational specialty 94B (Cook). At the time of her reenlistment the applicant had completed 1 year and 11 months of honorable service, held military occupational specialty (MOS) 63J (Heavy Equipment Repairer); and had attained the rank of specialist/E-4.
The applicants record documents that she completed an overseas tour in Germany in September of 1977 and was assigned to Fort Lee, Virginia. There are no individual acts of valor, achievement, or service warranting special recognition contained in the applicants record for the period of service under review.
On 9 May 1977 the applicant went AWOL from her unit; she was dropped from the rolls as a deserter on 27 June 1977; she was apprehended and confined by civil authorities and returned to military control on 26 August 1977; and finally, she was released from civil confinement and returned to duty on 28 November 1978.
On 2 December 1977 a court-martial charge was preferred against the applicant for violation of Article 86 for being AWOL from 9 May to 26 August 1977.
The evidence of record documents that the applicant consulted legal counsel on
2 December 1977 and 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 the contemplated trial by court-martial, the maximum permissible punishment, and of the possible effects of a UOHC. The applicant also attested to the fact that she fully understood she would be deprived of many or all Army benefits, that she may be ineligible for many or all benefits administered by the Department of Veteran Affairs, and that she may be deprived of veterans benefits under state and federal law.
On 16 December 1977 the appropriate authority approved the applicant's request for discharge and directed issuance of a UOHC Accordingly, on
28 December 1977 the applicant was discharged after completing 5 months and 18 days of her current enlistment, a total of 2 years, 4 months, and 18 days of active military service, and accruing 203 days of time lost due to AWOL and confinement.
There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the 15 year statute of limitations.
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, and applicable law and regulations, it is concluded:
1. The Board noted the applicants contentions that her addiction to drugs made her unaware of the severity of her discharge, and that had she know she would not have requested the action without counsel. 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, she 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 offense under the UCMJ, and attested to her understanding of the possible loss of veterans benefits based on receiving a UOHC.
2. 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.
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.
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
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