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ARMY | BCMR | CY2003 | 2003084400C070212
Original file (2003084400C070212.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 October 2003
         DOCKET NUMBER: AR2003084400

         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:

Ms. Kathleen A. Newman Chairperson
Mr. Lester Echols Member
Mr. John T. Meixell 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, he was told that he would be receiving a general discharge and that his total service should not be characterized by a few mistakes and over zealous persons.

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

The applicant entered active duty on 8 July 1974, completing basic combat training and advanced individual training without recorded incident.

The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 30 January 1976 for failure to go to his appointed place of duty.

A special court-martial, held on 17 December 1976, found the applicant guilty of disrespectful toward a commissioned officer and disobeying a lawful order from a commissioned officer.

The applicant received NJP on 17 June 1977 for disobeying a lawful order from a noncommissioned officer (NCO).

On 17 March 1978 the applicant declined NJP and demanded trial by court-martial on the charge of disrespectful language toward an NCO. Therefore, on 24 March 1978 court-martial charges were preferred against the applicant for disrespectful language toward an NCO and an additional charge of dereliction of duty.

On 30 March 1978 additional charges were preferred against the applicant for two counts of disrespectful language toward a commissioned officer and two counts of failure to obey a lawful order from a commissioned officer.

After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulation 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, and that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge.

The discharge authority accepted the applicant’s request and directed that he be discharged under other than honorable conditions.

The applicant was discharged under other than honorable conditions on 15 May 1978. He had 3 years, 10 months, and 4 days of creditable service.

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 undesirable discharge.

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 90, disobeying a lawful order from a commissioned officer.

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 overall record of military service.

2. The Board finds that the applicant had a history of infractions throughout his entire period of service. Additionally, the applicant has failed to provide any supporting documentation that he was told that he would receive a different type of 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

__ KAN__ ___LE __ ___JTM_ DENY APPLICATION



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


INDEX

CASE ID AR2003084400
SUFFIX
RECON
DATE BOARDED 20031002
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. Upgrade
2.
3.
4.
5.
6.


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