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ARMY | BCMR | CY2002 | 2002082701C070215
Original file (2002082701C070215.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 June 2003
         DOCKET NUMBER: AR2002082701

         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. G. E. Vandenberg Analyst


The following members, a quorum, were present:

Mr. Walter T. Morrison Chairperson
Mr. Lester Echols Member
Mr. Lawrence Foster 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)

APPLICANT REQUESTS: In effect, that his under other than honorable conditions discharge be upgraded to general.

APPLICANT STATES: That he received a general discharge which states that he is “eligible for all benefits ex(c)ept livestock.”

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

The applicant entered active duty on 24 August 1978. He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 76X (Substance Supply Specialist).

The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on 18 April 1979, for being absent without leave (AWOL) 31 March 1979 through 3 April 1979; on 21 June 1979, for being AWOL 5 June 1979 through 13 June 1979; and on 18 March 1980 for failure to go to his appointed place of duty.

A summary court-martial found the applicant guilty of being AWOL 5 July 1979 through 8 July 1979, and 16 July 1979 through 20 July 1979. He was sentenced to forfeiture of $250 for one month and 20 days confinement. He was in confinement from 9 August 1979 through 23 August 1979.

The applicant was reported AWOL for the period of 27 March 1980 through 18 August 1994, a total of 5,289 days.

On 22 September 1994, after consulting with counsel and being advised of his rights and options under the Uniform Code of Military Justice (UCMJ), the applicant submitted a formal request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulations 635-200, chapter 10. He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an under other than honorable conditions (UOTHC) discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge.

The applicant requested to be placed on excess leave ending resolution of his request for discharge. This request was granted and he was placed on excess leave on 28 August 1994.

The discharge authority accepted the applicant’s request and directed that he receive an UOTHC discharge.

The applicant was discharged on 3 November 1994 under other than honorable conditions for the good of the service in lieu of trial by court-martial.
The applicant’s DD Form 214 (Report of Transfer or Discharge) shows he had 1 year, 8 months, and 18 days of creditable service with 5,363 days lost due to AWOL, military incarceration, and/or excess leave.

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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. The applicant has not explained what he means by being eligible for all benefits of a general discharge except livestock. However, there is no evidence that the applicant received any type of discharge other than an UOTHC.

2. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request for an upgrade on his discharge.

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

_WTM __ __LE ___ __LF ___ DENY APPLICATION




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


INDEX

CASE ID AR2002082701
SUFFIX
RECON
DATE BOARDED 20030626
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. Upgrade
2. Chapter 10
3.
4.
5.
6.


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