MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF
        

                  BOARD DATE: 9 October 2003
                  DOCKET NUMBER: AR2003090861

         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 his UOTHC discharge was unjust and he was never provided an explanation for the basis for it. He claims that he was never informed on the process for changing or upgrading his discharge until he became ill and sought medical benefits, which were denied as a result of his discharge. He further claims that he never committed offenses serious enough to warrant the type of discharge he received and would like his discharge upgraded to an honorable discharge with benefits in order for him to improve his life.

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

On 30 September 1980 he enlisted in the Regular Army. His Personnel Qualification Record (DA Form 2-1) shows that he successfully completed
basic training and advanced individual training (AIT) at Fort Knox, Kentucky.
Upon completion of AIT, he was awarded military occupational specialty (MOS) 19D (Cavalry Scout).

The applicant’s record also confirms that the highest rank he attained while serving on active duty was private/PV2 (E-2), and it documents no acts of valor, significant achievement, or service warranting special recognition.

On 1 July 1981, the applicant departed absent without leave (AWOL) from his organization at Fort Bliss, Texas. He remained away until returning to military control on 26 September 1982, at Fort Knox, Kentucky.

On 29 September 1982, the applicant signed a statement in which he acknowledged that he had been counseled on the requirements for completion of a medical examination prior to separation. He further indicated that he understood that if he were being processed for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, he was not required to undergo a medical examination; however, he could request one. Subsequent to this counseling, the applicant elected not to undergo a medical examination.

On 30 September 1982, a court-martial charge sheet (DD form 458) was prepared preferring a court-martial charge against the applicant for being AWOL from on or about 1 July 1981 to on or about 26 September 1982.

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On 3 October 1982, 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 Uniform Code of Military Justice (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 19 October 1982, the appropriate authority approved the applicant’s separation request and directed that he be issued an UOTCH discharge.
On 29 October 1982, the applicant was discharged accordingly. At the time of his discharge, he had completed a total of 10 months and 5 days of creditable active military service and he had accrued 452 days of time lost due to AWOL.

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.

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 his discharge was unjust and he was not properly counseled on the basis for discharge and its effects during his separation processing. However, it finds insufficient evidence to support these claims.

2. The evidence of record shows the applicant was charged with the commission of an offense 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, which included the loss of VA benefits, 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 and the rights of the applicant were fully protected throughout the separation process. The Board also finds that the character of the applicant’s discharge accurately reflects his overall record of undistinguished 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.