MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 April 2001
         DOCKET NUMBER: AR2001051439


         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.

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. June Hajjar		Chairperson
Ms. Celia L. Adolphi		Member
Mr. Harry B. Oberg		Member

         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)

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APPLICANT REQUESTS: That his discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES: In effect, that his discharge should be upgraded to an honorable discharge under the Whistleblower Protection Act because he was not afforded legal representation at his court-martial or afforded the opportunity for drug treatment or rehabilitation. He further states that the chemical imbalance caused by his use of drugs contributed to his misconduct and that had he been given treatment he would not have received a discharge under other than honorable conditions.

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

He enlisted in San Antonio, Texas on 29 October 1976 for a period of 3 years, training as a combat engineer and assignment to Korea. He completed his training and was transferred to Korea for duty as combat engineer.

On 18 April 1977 nonjudicial punishment (NJP) was imposed against him for two specifications of failure to go to his place of duty. His punishment consisted of a forfeiture of pay (suspended for 3 months) and extra duty for 7 days.

On 13 February 1978 NJP was imposed against him for the wrongful possession of an unauthorized Armed Forces Liberty Pass, a Ration Control Plate belonging to another soldier and the wrongful possession of marijuana. His punishment consisted of a forfeiture of pay.

He completed his tour in Korea and was transferred to Fort Carson, Colorado on 17 February 1978.

On 3 May 1978 NJP was imposed against him for being absent from his place of duty on 1 April 1978. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 3 months), a forfeiture of pay (suspended for 1 month) and extra duty. The suspended reduction in grade was vacated on 14 June 1978 because the applicant went absent without leave (AWOL) on 1 June 1978. He remained absent until he was apprehended by civil authorities in Corpus Christi, Texas on 25 August 1978 and was returned to military control at Fort Sill, Oklahoma.

On 11 September 1978 NJP was imposed against him for being AWOL from 1 June to 25 August 1978. His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay.

The applicant again went AWOL on 18 September 1978 and remained absent until he was returned to military control at Fort Sill on 17 October 1978 and charges were preferred against him.
The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records. However, his records do show he was discharged under other than honorable conditions on 8 November 1978, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 8 months and 19 days of total active service and had 114 days of lost time due to AWOL.

There is no indication that the applicant has ever applied to the Army Discharge Review Board for an upgrade of his discharge using a DD Form 293 within that board’s 15-year statute of limitations.

At the time of his application to the Board he was incarcerated in a correctional facility in Texas.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed by counsel on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge. A discharge under other than honorable conditions is normally considered appropriate and there are no automatic provisions for an upgrade of such a discharge.

The DOD Directive Number 7050.6, dated 20 November 1989, covered the Military Whistleblower Protection provisions (Title 10, U.S. Code, section 1034). This directive was reissued on 3 September 1992. The directive indicates that it is DOD policy that no person shall restrict a member of the Armed Forces from lawfully communicating with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; that members of the Armed Forces shall be free from reprisal for making or preparing to make lawful communications to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; and that no employee or member of the Armed Forces may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing a lawful communication to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization. (Note: This directive was reissued again on 12 August 1995 to include specific other complaints as protected communications and expand the scope of persons and activities to whom a protected communication could be made.)
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. In the absence of evidence to the contrary, it must be presumed that the applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

2. Accordingly, it appears that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. A request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned. Therefore, it appears that after consulting with counsel, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

4. The applicant’s contentions have been noted by the Board and appear to be without merit. The applicant was required to consult with counsel before he could submit a request for discharge or before it could be accepted. The available records fail to show that he was ever tried by a court-martial or that he was denied counsel.

5. The applicant’s contention that he should receive consideration under the Whistleblower Protection Act also appears to be without merit. Not only has he not addressed any issues that would qualify him for such protection, he has also not addressed or provided proof of the reprisals that occurred, investigations that were requested or conducted or the steps he took in regards to such issues. Additionally, the Whistleblower Protection Act was not enacted until 1989, 10 years after the circumstances leading up to the applicant’s discharge occurred. Accordingly, there is no basis to grant him such status.

6. 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 this requirement.

7. 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

___jh ___ ___hbo__ ___cla___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001051439
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/04/05
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1978/11/08
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/GD OF SVC
2.
3.
4.
5.
6.