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Decision Text

ARMY | BCMR | CY1997 | 9711740
Original file (9711740.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOHC) be upgraded to general/under honorable conditions (GD).
APPLICANT STATES : In effect, that he saw a lawyer; that the lawyer said that he (the applicant) had not signed his
DD Form 214; and that his DD Form 214 did not reflect a proper accountability of his overseas service.

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

On 20 October 1977 he enlisted in the Regular Army for
3 years. At the time of his enlistment he was 21 years of age and had graduated from high school. He successfully completed basic and advanced individual training at Fort Sill, Oklahoma. Upon completion of training he was awarded military occupational specialty (MOS) 82C (Field Artillery Surveyor) and assigned to Fort Hood, Texas for his first permanent duty station.

The applicant’s record documents no individual acts of achievement or performance warranting recognition or commendation and indicates the applicant never advanced beyond the rank of private/E-1. However, there is a recorded history of several disciplinary infractions.

On 3 March 1978 the applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ for violation of Article 134 (possession of marijuana). His punishment for this offense was 14 days of extra duty and forfeiture of $75.00.

On 15 March 1978 the applicant accepted a field grade NJP for two specifications of violation of Article 86 (failure to go to appointed place of duty) and one specification of violation of Article 91 (disobeying a lawful order). His punishment for these offenses was forfeiture of $100.00 per month for two months and 15 days of correctional custody.

On 21 March 1978 a DD Form 458 (Charge Sheet) was prepared containing three charges with a total of eight specifications for violation of the following Articles of the UCMJ: 90 (disobeying the lawful command of superior officers); 91 (disobeying the lawful orders of a superior noncommissioned officer); and 134 (breaking restriction and communicating threats to service members in the performance of their duties). On 27 March 1978 an additional charge sheet was prepared adding four specifications to the charges contained on the original DD Form 458.

The record also contains documented evidence that in an undated disposition form (DA Form 2496) the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10 of AR 635-200 and acknowledged that he was guilty of the charges against him. 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 Veterans Administration and that he may be deprived of veterans benefits under state and federal law. The applicant also stated that under no circumstances did he desire to perform further military service.

On 21 April 1978 the appropriate authority approved the applicant's request for discharge and directed issuance of a discharge UOHC. Accordingly, on 10 May 1978 the applicant was discharged after completing 6 months and 21 days of active military service and accruing 19 days of lost time due to excess leave.

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 UOHC discharge is normally considered appropriate.

On 26 November 1982 the Army Discharge Review Board denied the applicant's request for an upgrade to his discharge and found that the discharge process was proper in all respects.

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 applicant's claim that his failing to sign his
DD Form 214 and the fact that his overseas service was incorrectly coded are not issues that raise matters of fact, law, procedure, or discretion relating to the discharge process nor is it associated with the type of discharge issued at the time. Additionally, the Board determined that the applicant was on excess leave at the time the DD Form 214 was issued and that he had made clear his desire not to continue military service under any circumstances; therefore, his contentions are not sufficiently mitigating factors which would warrant an upgrade of his discharge.

2. The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and that after consulting with legal counsel, the applicant 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




                                                      Karl F. Schneider
                                                      Acting Director

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