MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 July 2002
         DOCKET NUMBER: AR2002072119

         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. Joann H. Langston		Chairperson
Mr. Thomas B. Redfern, III		Member
Mr. Roger W. Able		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 a general discharge.

APPLICANT STATES: In effect, that he did everything he was told to do until he got to Fort Sill, Oklahoma, and believes that having served 2 years in the Army was sufficient to warrant a general discharge. He further states that it was unjust for him to have to leave the Army under other than honorable conditions and he felt like an agreement could not be reached on the consequences he would suffer for his actions. He was young and afraid, so he accepted the discharge. He continues by stating that he was unaware that he could have his discharge upgraded immediately after his discharge and all he wants from the Army now is a better discharge.

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

The applicant was born on 28 September 1959 and enlisted in Dallas, Texas, on 6 April 1979, for a period of 3 years, training as a field artillery cannon crewman and assignment to Fort Sill, Oklahoma. He was transferred to Fort Sill to undergo all of his training as well. He was advanced to the pay grade of E-2 on 6 October 1979.

On 7 November 1979, nonjudicial punishment was imposed against him for failure to go to his place of duty. His punishment consisted of a forfeiture of pay (suspended for 60 days), extra duty and restriction.

On 29 November 1979, a suspension of favorable personnel actions (FLAG) was initiated in conjunction with an investigation. It indicates that the applicant was pending court-martial charges for discharging a deadly weapon, possession of a weapon and possession of ammunition.

Court-Martial charges were preferred against him on 4 December 1979, for the unlawful possession of ammunition, discharging a firearm near a recreation center on post and unlawfully carrying a concealed weapon.

On 12 February 1980, he went absent without leave (AWOL) and remained absent until 14 February 1980, when he returned to military control and additional charges were preferred against him. He again departed AWOL on 12 March 1980 and remained absent until he returned to military control on 24 April 1981 and additional charges were preferred against him for the AWOL offense.

On 29 April 1981, 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 there was no automatic upgrade or review of a discharge under other than honorable conditions and that he understood that he must apply to the Army Discharge Review Board or this Board, if he desired to have his discharge reviewed. He also declined the opportunity to submit a statement in his own behalf.

The appropriate authority (a major general) approved his request for discharge on 5 May 1981 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 27 May 1981, under the provision of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. Contrary to his assertion that he had served two years in the Army, his records reveal that on his discharge he had served 1 year and 8 days of total active service and had 410 days of lost time due to AWOL.

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

A review of his records shows that on 17 July 1996, the applicant authorized the Texas Department of Criminal Justice (TDCJ), State Jail Division, to request a copy of his report of separation (DD Form 214), for the purpose of processing his application for participation in “Project RIO.” Project RIO (Reintegration of Offenders) is a program for incarcerated inmates in the TDCJ system, which provides a link between education, training and employment during incarceration with employment, training and education after release.

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 and there are not now nor have there ever been any provisions for an automatic upgrade of such a discharge.

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 seriousness of the charges against him, the length of his absences and 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

__jhl____ __tbr ___ __rwa___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072119
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/07/09
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1981/05/27
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.