MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 

	BOARD DATE:            29 April 1998                  
	DOCKET NUMBER:    AC97-09872

	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 than honorable conditions (UOHC) be upgraded.

APPLICANT STATES:  In effect, that he desires to obtain medical treatment from the Department of Veterans Affairs, and needs a clear response on the reason for his present discharge and the possibility of an upgrade.

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

The applicant entered the Regular Army on 30 October 1979 for a period of 
3 years. 

The applicant’s record documents no individual acts of valor, achievement, or service warranting special recognition, and indicates the applicant never advanced beyond the rank of private/E-1.  However, there is a record of disciplinary infractions including AWOL; civil conviction; and civil confinement which directly relate to the reasons for the applicant’s ultimate discharge.

The evidence of record indicates that on 26 August 1980 a DD Form 458
(Charge Sheet) was prepared preferring a charge against the applicant for violation of Article 86 for being AWOL from 8 April 1980 to 22 August 1980.

The record also contains documented evidence that on 27 August 1980, 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.  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.

On 28 August 1980 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.  In his endorsement the unit commander indicated that he had personally interviewed the applicant and that he had admitted that when he was arrested for being AWOL it was determined he was involved in a robbery.  The applicant was immediately tried and convicted of breaking and entering, and sentenced to five years of probation.  He was then released to military authorities because of his AWOL.  The applicant in his interview with the commander indicated he had no desire to remain in the Army and the unit commander concluded the applicant lacked potential for rehabilitation based on his attitude toward the military.

On 4 February 1981 the appropriate authority approved the applicant's request for discharge and directed issuance of a discharge UOHC.  Accordingly, on 
13 February 1981 the applicant was discharged after completing 11 months of active military service and accruing 136 days of time lost due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 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 applicant’s desire to receive medical care through the Department of Veterans Affairs.  However, eligibility for veteran's benefits does not fall within the purview of the Board and is not a factor on which the Board would base relief.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

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 offense under the UCMJ, and attested to his understanding of the possible loss of veterans benefits based on receiving a UOHC discharge.

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