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ARMY | BCMR | CY2003 | 2003083557C070212
Original file (2003083557C070212.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 August 2003
         DOCKET NUMBER: AR2003083557

         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. John N. Slone Chairperson
Mr. Roger W. Able Member
Ms. Regan K. Smith 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: That his discharge be upgraded.

APPLICANT STATES: In effect, that he did not have proper representation, that he had a “bad chemical dependency,” and his company commander was “no help.” He states that after he came to his “regular sense” he figured he was treated wrong as he had 12 years of service but did not get the help he needed.


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

He first entered active duty on 11 May 1970. He received an honorable discharge on 7 November 1971 and reenlisted the following day. He again received an honorable discharge on 26 May 1977 with an immediate reenlistment.

The applicant was AWOL (absent without leave) for the periods 22 June through 26 June 1981 and 6 January through 12 January 1982.

He received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for the second period of AWOL.

On 29 January 1982 the applicant was charged with carrying a concealed weapon and two counts of larceny, in violation of Articles 121 and 134, UCMJ.

At a 10 February 1982 mental status evaluation the applicant's behavior was normal. He was fully alert, oriented, and displayed an unremarkable mood. His thinking was clear, his thought content normal and his memory good. The remarks section shows ”No Psychiatric Disorder.” The psychiatrist’s recommendation cleared the applicant for any and all administrative actions deemed appropriate.

On 3 March 1982 after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulations 635-200, chapter 10, for discharge for the good of the service in lieu of trial by court-martial. The applicant acknowledged that the submission of this request constituted an admission of guilt to the stipulated offenses or lesser included charges under the UCMJ. 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 discharge (UOTHC) 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, and that there is no automatic upgrading or review of a less than honorable discharge.

On 23 March 1983 the discharge authority approved the request for discharge. He directed that the applicant be reduced to the lowest enlisted grade, and given a discharge under other than honorable conditions. The charges against him were dismissed effective the date of discharge.

On 12 April 1982 the applicant requested that his chapter 10 request be withdrawn. His chain of command recommended that the withdrawal be denied and the discharge authority concurred and directed that the applicant be discharged in accordance with the prior directive.

The applicant was discharged with an UOTHC on 5 May 1982. He had 11 years, 11 months, and 22 days of creditable service, with 4 years, 11 months, and 22 days during this period, and 17 days of lost time.

The Army Discharge Review Board reviewed the applicant’s case and on 9 December 1986 denied him relief.

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 honorable or general discharge is authorized, 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 121 (larceny) and Article 134 (carrying a concealed weapon on a military installation).

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 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 record of military service for this period.

2. There is no evidence of any type of chemical dependency and in the absence of evidence that, at the time of his offenses, he was so impaired as to be unable to tell right from wrong or to adhere to the right, his contention of suffering from a chemical dependency does not mitigate the offenses that led to his discharge.

3. 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.

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

__JNS__ ___RWA _ ___RKS_ DENY APPLICATION




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


INDEX

CASE ID AR2003083557
SUFFIX
RECON
DATE BOARDED 20030821
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. Upgrade discharge - drugs
2.
3.
4.
5.
6.


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