MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 July 2001
         DOCKET NUMBER: AR2001058047

         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. Robert J. McGowan		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Margaret V. Thompson		Member
Mr. William D. Powers		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 an honorable discharge; that his DD Form 214, Certificate of Release or Discharge From Active Duty, be corrected in Block 6 (Place of Entry into Active Duty) to show Fort Knox, Kentucky, and in Block 18 (Remarks) that he had 56 days of excess leave, not 95 days.

APPLICANT STATES: In effect, that his record of absence without leave (AWOL) indicates only minor, isolated offenses. In support of his application, he provides a copy of his DD Form 214, Certificate of Release or Discharge From Active Duty.

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

He enlisted in the Regular Army for 3 years on 15 January 1980 and entered active duty at the Armed Forces Examining and Entrance Station (AFEES) in Fresno, California. Following completion of basic training at Fort Knox and infantry training at Fort Benning, Georgia, he was awarded military occupational specialty (MOS) 11B10, Infantryman, and assigned to Fort Carson, Colorado.

The applicant's service record reflects a series of disciplinary violations wherein he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice. On 18 September 1980, he accepted NJP for possession/use of marijuana. His punishment included reduction from private (PV2/E-2) to private (PVT/E-1), forfeiture of $104.00, and restriction for 7 days. On 29 September 1980, he accepted NJP for again possessing/using marijuana and breaking restriction. This time his punishment included forfeiture of $100.00, restriction for 30 days, and extra duty for 30 days. On 20 October 1980, he accepted NJP for being AWOL from 9-17 October 1980. The punishment he received for this offense is not legible in the record.

The applicant went AWOL a second time on 5 January 1981 and remained absent until returning to military control on 24 February 1981. On 26 February 1981, he was given a mental status evaluation which found him normal, capable of distinguishing right from wrong and adhering to the right, and cleared him for administrative and/or judicial action. On 3 March 1981, court-martial charges were preferred against him. He consulted with legal counsel and requested separation in lieu of trial by court-martial for the good of the service under the provisions of chapter 10, Army Regulation 635-200.

The applicant's commander recommended approval of his request for separation and recommended that he receive a UOTHC discharge. The intermediate commander endorsed this recommendation, also recommending a UOTHC discharge. On 18 March 1981, the approving authority, a major general, approved the applicant's request for separation in lieu of trial by court-martial and directed that he be given a UOTHC discharge.
The applicant was separated with a UOTHC discharge on 8 June 1981. He had 1 year, 3 months, and 5 days of creditable service and his DD Form 214 reflects 50 days of lost time due to AWOL; however, he actually had 59 days of lost time. His DD Form 214 reflected that he entered military service at Akron, Ohio and that he had 95 days of excess leave from 4 March 1981 to his separation date.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Army policy states that although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate.

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 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.

2. The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The Board noted that, after consulting with defense 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. The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge. Finally, the Board considered the applicant’s entire record of service for the period under review, finding a pattern of misconduct over the applicant's entire short period of service.

3. The record shows that the applicant entered active duty at the AFEES in Fresno, California. This is the location at which he was administered his oath of enlistment.

4. There is nothing in the applicant's records to indicate that the number of days of excess leave taken was anything other than the 95 days shown on his DD Form 214. The Board presumes administrative regularity in this matter.

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.

NOTE: The Army Review Boards Agency - St. Louis is directed to issue a DD Form 215, Correction to DD Form 214, changing Block 6 from "Akron OH" to "Fresno CA."

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__jns __ __mvt ___ __wdp__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058047
SUFFIX
RECON
DATE BOARDED	20010724
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19810608
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	A71.00
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	110.0000
2.
3.
4.
5.
6.