MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 June 2002
         DOCKET NUMBER: AR2002070796

         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. Irene N. Wheelwright		Chairperson
Ms. Kathleen A. Newman		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: That his discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES: In effect, that he served for 2 years, 9 months and 15 days and believes that he should have received an honorable discharge, instead of being discharged under chapter 10.

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

He enlisted in Oakland, California, on 18 December 1978, for a period of 3 years, training as an infantryman and assignment to Europe. He completed his training and was transferred to Germany on 8 April 1979. He was advanced to the pay grade of E-3 on 1 October 1979.

On 15 November 1979, nonjudicial punishment (NJP) was imposed against him for breaking a window in a German establishment with his fist. His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay.

Although not explained in the available records, the applicant departed Germany on 15 November 1979 and was attached to the Armed Forces Entrance and Examination Station in Oakland until 5 August 1980, when he was transferred to Fort Carson, Colorado. He got married on 17 September 1980.

On 23 September 1980, NJP was imposed against him for being drunk and disorderly and breaking a window. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 30 days), a forfeiture of pay and extra duty.

On 3 November 1980, NJP was imposed against him for being disrespectful in deportment towards a superior noncommissioned officer and for angrily kicking materials in the back of a truck. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 30 days), a forfeiture of pay and extra duty.

On 14 January 1981, NJP was imposed against him for being drunk on duty on 7 separated days. His punishment consisted of a detention of pay ($250.00) for 2 months until 15 March 1981 and correctional custody for 30 days, effective upon entry.

On 30 January 1981, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 3 months), a forfeiture of pay (suspended for 3 months) and extra duty.

On 4 May 1981, he went absent without leave (AWOL) and remained absent until he was apprehended by civil authorities in Emeryville, California on 30 September 1981. He was returned to military control at Fort Ord, California, where charges were preferred against him for the AWOL offense. He again departed AWOL on 5 October 1981 and remained absent until he was apprehended by civil authorities on 15 February 1982 and was placed in custody in the San Juaquin County Jail. He was released to military control at Fort Ord and charges were again preferred against him.

On 17 March 1982, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. He further elected not to submit a statement in his own behalf; however, he indicated to his commander that he no longer desired to serve and would go AWOL again if returned to duty. He also indicated that he understood that there were no automatic provisions for upgrading his discharge and that he had been advised of the procedures for applying to the Army Discharge Review Board (ADRB) and this Board as well.

The appropriate authority (a major general) approved his request on 5 April 1982 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 21 July 1982, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 2 years, 9 months and 21 days of total active service and had 281 days of lost time due to AWOL.

There is no indication in the available records to show that he ever applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

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. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser



included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. 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 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, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. After being afforded the opportunity to assert his innocence before a trial by court-martial, 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. In doing so he admitted guilt to the charges against him. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the number and length of his absences as well as his otherwise undistinguished record of service during such a short period of time.

4. 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.

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.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__rtd ___ ___inw__ __kan___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070796
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/06/27
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1982/07/21
DISCHARGE AUTHORITY	AR635-200/ch10
DISCHARGE REASON	Gd of svc
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/a70.00
2.
3.
4.
5.
6.