| Mr. | Luther L. Santiful | Chairperson | |
| Mr. | Fred N. Eichorn | Member | |
| Mr. | Robert W. Garrett | Member |
| Mr. | Karl F. Schneider | Acting Director | |
| Mr. | Joseph A. Adriance | Analyst |
APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOHC) be upgraded.
APPLICANT STATES: In effect, that he never received a
court-martial but was taken before a general officer of his unit and forced to take a UOHC discharge.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted in the Regular Army on 5 April 1977 for 3 years at 19 years of age. He successfully completed One Station Unit Training at Fort Knox, Kentucky, was awarded military occupational specialty (MOS) 11D
(Scout Observer), and assigned overseas to Germany for his first permanent duty station.
The applicant’s record documents that the highest rank he held on active duty was private first class/E-3 which he attained on 1 December 1977. The applicant received no awards or decorations other than qualification badges for the M-16 rifle and the hand grenade; in addition, there is no indication of any specific acts of valor, achievement, or service warranting special recognition. However, there is information contained in the record that shows a history of disciplinary infractions.
On 8 November 1978 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ. The reason for the NJP was violation of Article 86, in that he did without authority fail to go to his appointed place of duty on 20 October 1978. The resultant punishment for this offense was: forfeiture of $106.00 for one month (suspended for three months); seven days of extra duty; and seven days restriction. On 4 December 1978 the suspended portion of the punishment pertaining to the forfeiture was vacated for an unspecified offense.
On 15 February 1980 the applicant’s unit commander initiated a bar to reenlistment action on the applicant. He cited as his reasons the NJP listed above and a myriad of disciplinary infractions which included: missing formations; absent from duty; disrespect to an NCO; and disobeying a lawful order. On 20 march 1980 the appropriate authority approved the bar to reenlistment action.
The evidence of record indicates that on 11 April 1980 a
DD Form 458 (Charge Sheet) was prepared preferring a charge against the applicant for violation of Article 134 of the UCMJ. The incident took place on 24 December 1980 and consisted of his unlawful entry into the Post Exchange at Hersfeld, Germany, with the intent to commit larceny.
The record also contains documented evidence that on
14 May 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 discharge 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 13 June 1980 the appropriate authority approved the applicant's request for discharge and directed issuance of a UOHC discharge. Accordingly, on 8 September 1980 the applicant was discharged after completing 3 years,
5 months, and 4 days of active military service.
There is no record of the Army Discharge Review Board having ever reviewed the applicant’s case.
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 found no evidence of record or independent evidence submitted by the applicant which supported his claim that a general officer was arbitrary and capricious in processing his discharge. 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.
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.
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
Karl F. Schneider
Acting Director
ARMY | BCMR | CY1997 | 9711740
EVIDENCE OF RECORD : The applicant's military records show: 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. The evidence of record shows the applicant was charged with the commission of an offense punishable under the...
ARMY | BCMR | CY1997 | 9710972
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. Chapter 10 of that...
ARMY | BCMR | CY1997 | 9711741
EVIDENCE OF RECORD : The applicant's military records show: 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. The Board found no evidence of record or independent evidence submitted by the applicant which supported his...
ARMY | BCMR | CY1997 | 9709832
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...
ARMY | BCMR | CY1996 | 9606862C070209
On 8 September 1978, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of service with a discharge UOTHC. On 3 June 1980, the Army Discharge Review Board denied the applicants request for an upgrade of his discharge. The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph...
ARMY | BCMR | CY1997 | 9709364C070209
At the time of his enlistment the applicant had completed 1 year, 3 months, and 23 days of service in the United States Army Reserve. The record also contains documented evidence that the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10 of AR 635-200. 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...
ARMY | BCMR | CY1997 | 9709364
EVIDENCE OF RECORD : The applicant's military records show: At the time of his enlistment the applicant had completed 1 year, 3 months, and 23 days of service in the United States Army Reserve. 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...
ARMY | BCMR | CY1996 | 9611235C070209
On 18 December 1996 the Army Discharge Review Board denied the applicants request to upgrade his discharge. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. There is no evidence of record to substantiate the applicant's claim that military authorities were aware of his alleged personal problems.
ARMY | BCMR | CY1996 | 9611242C070209
EVIDENCE OF RECORD: The applicant's military and medical records show: During the period 4 May 1967-28 April 1969, he served in the Army of the United States for 1 year, 11 months and 23 days. On 8 September 1980, the appropriate separation authority approved his discharge and directed his reduction to the lowest pay grade and that he receive a discharge UOTHC. At the time of the applicants separation, the regulation provided for the issuance of a UOTHC discharge.
ARMY | BCMR | CY1997 | 9709262
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 Board considered the...