MEMORANDUM OF CONSIDERATION


         IN THE CASE OF: .
        


         BOARD DATE: 23 August 2001
         DOCKET NUMBER: AR2001052210

         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
Ms. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. John H. Kern		Chairperson
Mr. Thomas Lanyi		Member
Ms. Paula Mokulis		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 under other than honorable conditions (UOTHC) discharge be upgraded to general, under honorable conditions.

APPLICANT STATES: That he was told that the discharge would automatically be upgraded in 7 years.

COUNSEL CONTENDS: In effect, that the applicant has been homeless and an alcoholic since his discharge from the military; that he has achieved sobriety through rehabilitation; and that the upgrading of his discharge would be a further step in rehabilitation. Counsel asks the Board to consider clemency in the review of the applicant’s discharge and the injustices raised by him.

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

He enlisted in the United States Army Reserve (USAR) on 11 October 1977 for a period of 6 years and was assigned to the 305^th Field Hospital, Gulfport, Mississippi.

On 30 October 1977, the applicant reported to Fort Jackson, South Carolina for initial active duty for training (IADT) in military occupational specialty (MOS) 43M, Fabric Repairman. Upon completion of IADT, he was assigned to Fort Lee, Virginia for advanced individual training (AIT). Following completion of all military training, he was returned to 305^th Field Hospital on 17 March 1978.

On 8 April 1978, after orientation, the applicant authenticated with his signature that he was aware and understood his obligations, the prerequisite for maintaining satisfactory participation, and the consequences of unsatisfactory participation.

On 17 July 1978, through a letter of instruction, the applicant’s commander advised him that he had accumulated 12 unexcused absences in a 12-month period (9 April 1978; 7 May 1978; 10-11 June 1978; and 1-2 July).

On 1 August 1978, the commander notified the applicant that, due to his unsatisfactory participation, he had no choice but to order him to involuntary active duty for 24 months minus any prior service on active duty, IADT, annual training and full-time training. He advised him of his right to request discharge or appeal.

On 18 August 1978, the applicant’s unit commander requested active duty orders under the provision of paragraph 6-3b, Army Regulation (AR) 135-91. He stated that the applicant had failed to fulfill the satisfactory participation requirement of

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USAR membership under Army Regulation (AR) 635-91. Orders Number 199-9, dated 18 October 1978, released the applicant from his USAR assignment and ordered him to involuntary active duty for a period of 19 months and 10 days, effective 5 December 1978. He was assigned to Fort Sill, Oklahoma.

On 30 April 1979, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from his unit from 14 April 1979 to 19 April 1979. His punishment consisted of forfeiture of $50.00 pay (suspended for 60 days), reduction to private/E-1 (suspended for 60 days), and 14 days of extra duty.

On 19 July 1979, the applicant once again departed his unit in an AWOL status and remained absent until 19 August 1979. On 29 August 1979, court-martial charges were preferred against the applicant.

On 4 September 1979, after consulting with counsel about his rights, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200. He elected not to submit a statement in his own behalf. The unit commander recommended approval with a UOTHC.

On 21 September 1979, the appropriate authority approved the applicant’s request for discharge with a UOTHC. Accordingly, on 28 September 1979, the applicant was discharged from the Army after completing 8 months and 19 days of creditable active service on the period under review, and a total of 1 year, 1 month, and 9 days creditable active military. He had accrued 36 days of lost time.

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 have been 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.

There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

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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 US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits a request for a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge, or both, were improper or inequitable.

2. The evidence of record does not support the applicant’s contention that he was told his discharge would be upgraded in 7 years. The evidence of record shows counsel advised the applicant of his rights and that he acknowledged that he understood them prior to his requesting discharge under the provisions of chapter 10.

3. The Board notes the struggles the applicant has gone through since his discharge from the Army and congratulates him on his accomplishments through rehabilitation. However, this does not provide a basis for an upgrade of his discharge.

4. The applicant’s administrative discharge under the provisions of chapter 10, AR 635-200 in lieu of trial by court-martial was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

5. The Board noted that the applicant had accumulated more than 12 unexcused absences in a 12-month period by failing to attend his monthly training assemblies. His unit commander notified him that because of his failure to attend his unit training assemblies he was declaring him an unsatisfactory participant and was requesting orders to involuntarily order him to active duty. Even though the applicant was involuntarily ordered to active duty because of his unexcused absences, he continued his pattern of not showing up for work by accumulating two periods of AWOL (36 days).

6. After a thorough review of the applicant’s record, the Board concluded that the applicant was appropriately discharged. The applicant’s repeated pattern of misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

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7. 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.

8. 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

__JHK __ __TL ___ __PM ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001052210
SUFFIX
RECON
DATE BOARDED	20010823
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19790928
DISCHARGE AUTHORITY	AR 635-200, c10
DISCHARGE REASON	In lieu of trial by court-martial
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.	144.9405
2.
3.
4.
5.
6.