MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 March 2003
         DOCKET NUMBER: AR2002080710

         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. Raymond V. O’Connor, Jr.		Member
Ms. Eloise C. Prendergast		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 (UOTHC) be upgraded to honorable.

APPLICANT STATES: In effect, that his discharge UOTHC should be upgraded to honorable because he was denied due process and was unjustly treated. Additionally, it should have been upgraded within 6 months as agreed to at the time.

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

He initially enlisted on 6 October 1976, for a period of 3 years, training as an infantry indirect fire crewman and assignment to Europe. He successfully completed his training and was transferred to Germany on 6 February 1977. He was married in Bad Hersfeld, Germany on 20 April 1978 and was advanced to the pay grade of E-4 on 1 July 1978.

On 24 May 1979, he was honorably discharged for the purpose of immediate reenlistment. He reenlisted on 25 May 1979 for a period of 3 years, stabilization in Germany for 12 months and a selective reenlistment bonus.

On 5 March 1980, nonjudicial punishment (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-3 (suspended until 6 June 1980), a forfeiture of pay and extra duty.

On 27 May 1980, NJP was imposed against him for two specifications of wrongful possession of marijuana, two specifications of wrongful possession of hashish, one specification of wrongful transfer of hashish, one specification of wrongful sale of hashish, and one specification of failure to go to his place of duty. His punishment consisted of a reduction to the pay grade of E-2.

He departed Germany on 1 June 1980 and was transferred to Fort Stewart, Georgia.

The applicant went absent without leave (AWOL) from 22 December to 28 December 1980. The record is silent as to any punishment imposed; however, they do show that his date of rank and service dates were adjusted accordingly.

On 18 May 1981, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of a forfeiture of pay and 7 days correctional custody.

He was advanced to the pay grade of E-3 on 1 August 1981 and on 25 November 1981, NJP was imposed against him for two specifications of failure to go to his place of duty. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay and extra duty.

On 22 December 1982, the applicant's commander initiated action to bar the applicant from reenlistment. He cited as the basis for his recommendation the applicant's disciplinary record, dereliction of duty, absenteeism, failure to follow orders, recalcitrance, apathy, frequent difficulties with fellow soldiers, misconduct in the civilian community, and his demonstrated inability to adapt to military life. The applicant elected not to submit a statement in his own behalf and the battalion commander approved the bar to reenlistment.

On 24 February 1982, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

On 24 May 1982, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of forfeiture of pay and extra duty.

The applicant went AWOL on 17 April 1982 and remained absent until he surrendered to military authorities at Fort Gordon, Georgia, on 5 January 1983. He was then transferred to Fort Bragg, North Carolina, where charges were preferred against him for the AWOL offense.

On 12 January 1983, 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 declined to submit a statement or explanation in his own behalf.

The applicant's commander interviewed him on 19 January 1983 and he informed the commander that he went AWOL because he felt harassed at his unit and because he had lost his son and found his wife in bed with another man. He could not cope with the stress of home life and pressure from his unit and since his request for reassignment to another unit or overseas was denied, he went AWOL. He desired to be discharged under chapter 10 so that he could continue with his job.

The appropriate authority approved his request on 28 February 1983 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions while on excess leave, on 18 March 1983, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 5 years, 8 months and 18 days of total active service and had 270 days of lost time due to AWOL.

A review of the available records fails to show that the applicant was ever advised that his discharge would be automatically upgraded or reviewed within 6 months of his discharge.

There is no indication 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.

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 never have 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 courtmartial, 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 length of his absence as well as his otherwise undistinguished record of service.

4. The Board has noted the applicant’s contentions and finds that they are not supported by the evidence submitted with his application or the evidence of record. He was afforded representation by counsel at the time and there is no evidence to suggest that he was advised that his discharge would be upgraded after 6 months.

5. 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.

6. 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____ __elp____ ___rvo __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002080710
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/03/27
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1983/03/18
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.