MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 May 2003
         DOCKET NUMBER: AR2003083679

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr..		Chairperson
Mr. Stanley Kelley .		Member
Ms. Gail J. Wire		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 undesirable discharge (UD) be upgraded.

APPLICANT STATES: In effect, that he wants the Board to review his discharge based upon his military personnel file and taking into consideration his excellent post service conduct. In support of his application, he submits two letters of support attesting to his good character and employment history; and a copy of Metropolitan Police Department, Washington, DC, Criminal History Request.

COUNSEL CONTENDS: In effect, that he concurs with the applicant’s request for an upgrade of his discharge, and recommends that the applicant’s UD be upgraded to a general, under honorable conditions discharge (GD).

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

The applicant’s military records show that he was honorably separated for the purpose of immediate reenlistment on 24 May 1973, after completing 1 year,
9 months and 21 days of creditable active military service. He immediately reenlisted for 6 years on 25 May 1973, and he continuously served on active duty until he was discharged under other than honorable conditions (UOTHC) on
20 August 1976.

The applicant’s record shows that he was trained and served in military occupational specialty (MOS) 75B (Personnel Administration Specialist), and that the highest rank he attained while serving on active duty was specialist five /E-5 (SP5/E-5). It also shows that he earned the following awards during his tenure on active duty: Parachute Badge; Armed Forces Expeditionary Medal (Korea); and the National Defense Service Medal.

The applicant’s record documents no other specific acts of valor, significant achievement, or service warranting special recognition. However, it does reveal an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four separate occasions for the offenses indicated: 23 August 1971, for failing to go to his appointed place of duty; 7 May 1973, for making a false official statement to receive payment of a claim against the United States; 28 August 1973, for failing to go to his appointed place of duty; and 18 September 1973, for failing to go to his appointed place of duty.

On 7 June 1976, court-martial charges were preferred against the applicant for wrongfully having in his possession 83.18 grams of marihuana; and for the wrongful transfer of 83.18 grams of marihuana.

---

On 9 July 1976, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial; the maximum allowable punishment; and the possible effects of an UD discharge. Subsequent to this counseling, the applicant voluntarily requested to be discharged for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10,
Army Regulation 635-200. He also submitted a statement in which he indicated that his remaining in the Army would only result in him getting into more trouble.

On 23 July 1976, the appropriate authority approved the applicant’s discharge request and directed that he receive an UD, and that he be reduced to the lowest enlisted grade.

On 20 August 1976, the applicant was discharged accordingly. At the time of his discharge, he had completed a total of 5 years and 17 days of creditable active military service.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statue of limitations.

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. However, at the time of the applicant's separation the regulation provided for the issuance of an UD.

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 Board notes the requests of the applicant and his counsel that his discharge be upgraded based on his overall record of service and his excellent post service conduct. It also carefully considered the letters and documents of support provided by the applicant. However, the Board finds none of these factors are sufficiently mitigating to warrant the requested relief.

2. The evidence of record shows that the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, he admitted guilt to the stipulated offenses under the UCMJ.

3. The Board is satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process. It also finds that the applicant’s discharge accurately reflects his overall record of service, and was appropriate given the seriousness of his offenses. Thus, notwithstanding his excellent post service conduct, the Board concludes that the requested relief is not warranted in this case.

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

GW___ __SK___ __RO__ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002083679
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	YYYYMMDD
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19760820
DISCHARGE AUTHORITY	AR 635-200. . . . .
DISCHARGE REASON	Ch 10, In Lieu of Trial by CM
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000
2.
3.
4.
5.
6.