MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:              8 July 1998                 
	DOCKET NUMBER:     AC98-07293

	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.  The following members, a quorum, were present:

	Ms.	June Hajjar		Chairperson	
	Mr.	Raymond V. O’Connor Jr.		Member	
	Ms.	Shirley L. Powell		Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
	Mr.	Joseph A. Adriance		Analyst	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 under other than honorable conditions discharge (UOHC) be upgraded.

APPLICANT STATES:  In effect, that he wasn’t in a position to argue about why he went AWOL and agreed to the terms in order to get home to his pregnant wife.

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

On 27 March 1990 the applicant entered the Regular Army for 3 years at the age of 19.  He successfully completed One Station Unit Training (OSUT) at Fort Benning, Georgia.  Upon completion of OSUT he was awarded military occupational specialty (MOS) 11B (Infantryman) and assigned overseas to Germany for his first permanent duty station.

The applicant’s record documents that the highest grade he held on active duty was private first class/E-3; that he completed combat service in Southwest Asia for which he earned the Southwest Asia Service Medal and the Kuwait Liberation Medal; and that he completed an overseas tour in Germany for which he earned the Overseas Service Ribbon.  The record contains no other acts of valor, achievement, or service warranting special recognition.  

The evidence of record is void of facts and circumstances concerning events that led to the applicant’s discharge from the Army.  However, the applicant’s record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty).  The DD Form 214 indicates that the applicant was discharged under the provisions of chapter 10, AR 635-200, for the good of the service-in lieu of court-martial, with a UOHC.  The DD Form 214 also documents the reason for discharge as for the good of the service which could only have been accomplished at the voluntary request of the applicant based on court-martial charges having been preferred against him.  This action would have also required the applicant’s admission of guilt to the offense or offenses for which he was charged.  

The DD Form 214 indicates the applicant was discharged on 
12 May 1992 with a UOHC, after completing 1 year, 10 months and 27 days of active military service, and accruing 79 days of time lost due to AWOL.

On 23 March 1998 the applicant personally appeared before the Army Discharge Review Board (ADRB) to request an upgrade of his discharge.  On 1 April 1998 the ADRB denied the applicant’s request and found that the discharge process was proper in all respects.

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 are 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, and applicable law and regulations, it is concluded:

1.  The Board concurs with the findings and conclusions of the ADRB and presumes that the applicant's administrative separation was accomplished in compliance with applicable regulations. There is no indication of procedural errors by the ADRB which would tend to have substantially jeopardized the applicant's rights.

2.  The Board concluded the applicant’s contention, that he was not in a position to argue the circumstances of his AWOL because of personal problems is not sufficiently mitigating to warrant an upgrade to his discharge.  Although the applicant’s record is void of specific facts and circumstances concerning events that led to a discharge from the Army, the Board did note that the applicant’s record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) which documents the reason and characterization of the discharge, and the Board presumed government regularity in preparation of the document.  The DD Form 214 is evidence that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, and voluntarily requested separation from the Army, in lieu of trial by court-martial.  In doing so, the applicant would have had to admit guilt to the stipulated offense under the UCMJ.  

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 the aforementioned 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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director