MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 February 2002
         DOCKET NUMBER: AR2001062625

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. Raymond J. Wagner		Member
Mr. Richard T. Dunbar		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: In effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

APPLICANT STATES: In effect, that his record will indicate that he received numerous awards and that he graduated with top honors. Unfortunately, while serving in Germany he was not selective in the people he associated with. He indicates that he was young and stupid and will regret this action for the rest of his life. He also claims that he regrets the fact he discredited himself, his family, and his country. He appeals his discharge in order to correct this worse mistake of his life. He states that he comes from a military family and it was not until he grew up that he realized what his actions had cost him and his family.

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

On 14 October 1980, he enlisted in the Regular Army for 3 years at the age of 18. He completed training in and was awarded military occupational specialty 19E (Armor Crewman).

The applicant’s record confirms that the highest rank he attained while serving on active duty was private first class/E-3 and it shows that during his active duty the only award he received was the Army Service Ribbon. The record documents no acts of valor, significant achievement, or service warranting special recognition. However, it does include an extensive disciplinary history that includes his acceptance of nonjudicial punishment NJP) on four separate occasions.

The applicant accepted NJP on the following four occasions for the offenses indicated: February 1981, for being absent without leave from 31 January to
1 February 1981; 17 April 1981, for failing to go to his prescribed place of duty; 14 May 1981, for two specifications of disobeying an order from a commissioned officer and unlawfully striking another soldier. In addition, the record confirms that the applicant accrued 246 days of time lost due to AWOL during his active duty tenure.

The applicant departed AWOL from his unit on 12 December 1982 and remained away for 240 days until returning to military control on 9 August 1983. Although there is no separation packet containing the specific facts and circumstances concerning the events surrounding his discharge processing on file, there is an indication that a court-martial charge was preferred against him for this period of AWOL and there is a properly constituted separation document (DD Form 214) on file that contains the authority and reason for his discharge.

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The DD Form 214 on file confirms that the applicant was discharged UOTHC on
14 September 1983. The reason for his separation was listed as for the good of the service/in lieu of trial by court-martial and the authority was chapter 10,
Army Regulation 635-200. At the time of his separation, he had completed a total of 2, years, 2 months, and 29 days of creditable active military service and had accrued a total of 246 days of time lost due to AWOL.

There is no indication in the record that the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within its 15 year statute of limitations.

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. Although an honorable or general discharge is authorized, 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, applicable law and regulations, it is concluded:

1. The Board notes the applicant’s contention that he was young and immature and regrets the actions that resulted in his discharge. However, it finds this factor is not sufficiently mitigating to warrant the requested relief.

2. Although the applicant’s record is void of the specific facts and circumstance s concerning the events that led to his discharge, the Board notes that the record does contain a properly constituted DD Form 214 that identifies the reason and characterization of his discharge, and the Board presumed Government regularity in the discharge process.

3. The evidence of record shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial. In connection with such a discharge, he would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. Procedurally, after consulting with counsel and being advised of the basis for the contemplated trial by court-martial, the maximum allowable punishment under the UCMJ, and of the effects of a discharge UOTHC, he would have been required to voluntarily request discharge and doing so, he would have admitted guilt to the stipulated offense under the UCMJ.
4. In the absence of information to the contrary, the Board is 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 UOTHC and that the applicant would have been made aware of that prior to requesting discharge.

5. Finally, the Board considered the applicant’s entire record of service for the period under review, and it determined that his discharge accurately reflects his overall record of service. Therefore, the Board concludes that relief is not warranted in this case.

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

__GDP__ __TAP__ __MHM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062625
SUFFIX
RECON
DATE BOARDED	2002/02/26
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1983/09/14
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.