MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        

                  BOARD DATE: 9 October 2003
                  DOCKET NUMBER: AR2003089366

         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
Ms. Yvonne J. Foskey .		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. Robert J. Osborn		Member
Ms. Eloise C. Prendergast .		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: In effect, that his under other than honorable conditions (UOTHC) discharge be upgraded.

APPLICANT STATES: In effect, that he should have received treatment for his problem with a controlled substance instead of being discharged. He believes that had he received treatment, he would still be serving his country.

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

On 31 July 1981, he enlisted in Regular Army for 4 years. His Personnel Qualification Record (DA Form 2-1) shows that he successfully completed basic training and advanced individual training (AIT) at Fort Jackson, South Carolina. Upon completion of AIT, he was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle and Power Generator Mechanic).

The applicant’s record also confirms that the highest rank he attained while serving on active duty was specialist (SPC), and that he was reduced to the rank of private first class (PFC) for cause on 11 October 1983. The record documents no acts of valor, significant achievement, or service warranting special recognition.

The record does reveal a disciplinary history that includes the applicant’s acceptance of nonjudicial punishment (NJP) under the provisions of Article 15
of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated: 15 August 1983, for being absent from his place of duty without authority; and 11 October 1983, for the knowing and wrongful use of marihuana. The record also shows that a bar to reenlistment was imposed on the applicant on 28 September 1983 based on his record of NJPs and positive urinalysis test.

On 20 November 1983, the applicant departed absent without leave (AWOL) from his unit in Germany, He remained away until returning to military control on 10 January 1984 at Fort Knox, Kentucky.

On 23 January 1984, a charge sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for the period of AWOL outlined in the preceding paragraph.

On 23 January 1984, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and the procedures and rights available to him. Subsequent to this counseling, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.
In his request for discharge, the applicant acknowledged he was guilty of the charge against him or of a lesser included offense that also authorized the imposition of a punitive discharge. He further acknowledged his understanding that if he received an UOTHC discharge, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also indicated that he understood he could face substantial prejudice in civilian life because of his UOTHC discharge.

On 16 February 1984, the appropriate approving authority approved the applicant’s request for discharge, directed that he be separated for the good of the service under the provisions of chapter 10, Army Regulation 635-200, and that he be given an UOTHC discharge. On 9 March 1984, the applicant was discharged accordingly after completing a total of 2 years, 5 months, and 19 days of active military service and having accrued a total of 51 days of time lost due to AWOL.

In 1989, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 5 June 1989, the ADRB determined that he was properly and equitably discharged and voted to deny the applicant’s request.

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

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 applicant’s contention that had he received treatment for his substance abuse instead of being discharged, he would still be serving his country today. However, it finds this factor provides an insufficient evidentiary basis to support granting the requested relief.

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2. The evidence of record shows the applicant’s discharge was not directly related to or based on his substance abuse, but rather on his 51 day period of AWOL. A court-martial charge was preferred against him as a result of this AWOL and it was punishable under the UCMJ with a punitive discharge. The Board notes that after consulting with defense counsel and being advised of the consequences of requesting an administrative discharge in lieu of court-martial, the applicant voluntarily requested separation in lieu of trial by court-martial.

3. Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and the character of his discharge accurately reflects his overall record of service. Therefore, 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

_ECP___ ___RO__ __RJO__ DENY APPLICATION

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

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INDEX

CASE ID	AR
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.