MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 31 July 2003
         DOCKET NUMBER: AR2003084881

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. Gail J. Wire		Chairperson
Ms. Karen A. Heinze		Member
M . Robert Duecaster		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 a general discharge under honorable conditions.

APPLICANT STATES: That he believes the circumstances involved in his discharge warranted a better discharge. He was in a fight which was started by someone else. He wanted to stay in but was released because of the fight. He was not at fault but he had to protect himself. He provides no supporting evidence.

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

He enlisted in the Army National Guard on 16 January 1980. He was ordered to initial active duty for training effective 7 March 1980.

The applicant's Army Discharge Review Board (ADRB) packet shows he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on 4 June 1980 for unlawfully striking a private with a blunt instrument.

On 10 June 1980, the applicant completed a release from active duty for training physical examination and was found qualified for separation.

The applicant's ADRB packet also shows that he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on 7 August 1980 for breaking restriction; unlawfully entering the dwelling room of a private with intent to commit larceny; stealing a Polaroid camera, personal property of a private; being disrespectful in language towards a noncommissioned officer; and unlawfully striking a private on the head with a closed fist.

On 23 November 1980, the applicant elected not to complete a separation physical examination.

On 26 November 1980, court-martial charges were preferred against the applicant charging him with being absent without leave (AWOL) from on or about 29 August to on or about 18 November 1980.

On 26 November 1980, the applicant underwent a mental status evaluation. He was found to have the mental capacity to understand and participate in proceedings and to be mentally responsible.

On 2 December 1980, the applicant signed a statement wherein he declared that he was advised by his defense counsel the government had not received the

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necessary documentation with which to obtain a conviction by a court-martial. Knowing that, he knowingly, willingly, and voluntarily declared that he was AWOL from 21 June (sic) through 18 November 1980. He made that admission for administrative purposes only so he could process out of the Army and realized in doing so he could be given a discharge UOTHC.

On 2 December 1980, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits. He submitted a statement in his own behalf. He stated that for some reason his commander had something against him. One night he came back from the club and was going to his bunk. All of a sudden some guys were having a hassle over a missing pool cue and somehow his name was involved. He was always the type to be alone and he guessed they just did not like his style. His commander even had him dropped from the course and he was at the very end of it. She also did everything in her power to stop his impending marriage.

On 20 April 1981, the appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.

On 19 May 1981, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC. He had completed 11 months and 4 days of creditable active service and had 81 days of lost time. (His DD Form 214 erroneously shows his component as U. S. Army Reserve.)

On 7 January 1987, the ADRB denied the applicant’s request for an upgraded discharge.

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. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. A discharge UOTHC is normally considered appropriate.

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Army Regulation 635-200 states, in pertinent part, that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A general discharge is a separation from the Army under honorable conditions. It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable 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. 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.

2. 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 court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.

3. The Board notes that the applicant was not discharged because he was in a fight. He was discharged because he went AWOL.

4. The Board also notes that prior to departing AWOL the applicant twice accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice. The first Article 15 was for assault; the second Article 15 included the offenses of assault and larceny. The applicant fails to provide any explanation of how the circumstances he outlined in his contentions (and in the statement he submitted with his request for discharge) mitigated the offenses for which he accepted his second Article 15 or his AWOL.

5. The Board concludes that the applicant's record of service does not warrant the upgrading of his discharge.

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

__gjw___ __kah___ __rd____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084881
SUFFIX
RECON
DATE BOARDED	20030731
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19810519
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.