MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 May 2002
         DOCKET NUMBER: AR2002067223

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Walter T. Morrison		Member
Mr. Christopher J. Posser		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 a fully honorable discharge (HD).

APPLICANT STATES: That he served diligently for 11 years; that as a food service specialist, he was ridiculed by soldiers in other military occupational specialties (MOS); that he endured countless deployments to remote areas of the world and served in two conflicts -- Operation Just Cause and Operation Desert Storm; that he graduated from the Advanced Airborne School and became a jumpmaster; and that he reached the rank of sergeant. He adds that while serving in Korea from 1997-98, he began drinking heavily. When he returned to Fort Bragg, North Carolina, he enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). While in ADAPCP, he deployed to the Mexican border with Joint Task Force (JTF) 6 and suffered a relapse in his treatment for alcoholism. With mounting pressures and with disciplinary actions being taken against him, he ended up going AWOL (absent without leave). Court-martial charges were preferred against him and he requested discharge in lieu of trial.

EVIDENCE OF RECORD: The applicant’s complete military records were not available. Partial records show:

Prior to the period of service under review, the applicant completed three periods of honorable service in the Regular Army (RA) from 11 September 1987-17 May 1990, 18 May 1990-6 April 1992, and 7 April 1992-19 December 1994. During these periods of service, he participated in Operation Just Cause and Operation Desert Shield/Desert Storm.

In 1997, the applicant served a 1-year tour of duty in Korea. Upon returning to Fort Bragg, he received a General Officer Memorandum of Reprimand (GOMOR) on 13 March 1998 for driving while intoxicated (his blood-alcohol content was .17). The GOMOR was filed in the applicant’s Official Military Personnel File.

On 15 October 1998, the applicant accepted nonjudicial punishment (NJP) under the provision of Article 15, Uniform Code of Military Justice, for disobeying a lawful order given by a commissioned officer on 16 September 1998. His punishment included reduction from pay grade E-5 to pay grade E-4, forfeiture of one half of his pay for 2 months and an oral admonition.

The applicant's DA Form 2-1 (Personnel Qualification Record) shows that he was reduced from pay grade E-4 to pay grade E-3 on 3 January 1999. The facts surrounding this reduction are not a matter of record.

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On 1 February 1999, the applicant left his unit in an AWOL status and he returned the same day. On 2 February 1999, he left his unit in an AWOL status and he remained AWOL until he returned to military control at the Special Processing Company, Fort Knox, Kentucky on 3 March 1999.

On 12 March 1999, court-martial charges were preferred against him for being AWOL from 2 February-3 March 1999. On the same date, he consulted with legal counsel and requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial. He was advised that he could receive a UOTHC discharge. He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UOTHC discharge. He also submitted the same statement that he has submitted to this Board for consideration.

On an unknown date, the applicant’s unit commander recommended separation with a UOTHC discharge.

On 29 May 2000, the appropriate authority approved the applicant’s request for discharge and directed the issuance of a UOTHC discharge in accordance with chapter 10, Army Regulation 635-200. He was also reduced to pay grade E-1.

On 12 September 2000, the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was separated under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial with a UOTHC discharge. His DD Form 214 shows in Item 4a and 4b that his rank was “PV1” and his pay grade was “E1.” He had completed 5 years, 7 months and 22 days of active military service on the enlistment under review and he had completed a total of 12 years, 11 months and 1 day of active military service. He also has 31 days of lost time due to being AWOL.

On 16 January 2002, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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 HD or a GD is authorized, a UOTHC discharge is normally considered appropriate. A GD is considered appropriate only if the soldier’s overall record of service merits such a characterization of service.

Army Regulation 600-200, then in effect, prescribed policies governing promotion and reduction of Army enlisted personnel. Paragraph 8-11, in pertinent part, stated that when a soldier receives a UOTHC discharge, the soldier will be automatically reduced to the lowest enlisted grade.

Army Regulation 635-200 provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial.

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 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, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. Procedurally, the applicant would have been required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial. In doing so, the applicant would have had to admit guilt to the stipulated offenses under the UCMJ. It is noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant would have been made aware of that prior to requesting discharge.

3. The Board considered the applicant’s entire record of service for the period under review. The applicant's pattern of repeated misconduct during his final period of service reduced the quality of that service below that required for a separation under honorable conditions.

4. 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

___fne __ ___cjp___ ___wtm _ DENY APPLICATION

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

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INDEX

CASE ID	AR2001067223
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020502
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR635-200
DISCHARGE REASON	A71.00
BOARD DECISION	(PARTIAL GRANT)
REVIEW AUTHORITY
ISSUES 1.	144.7100
2.
3.
4.
5.
6.