MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:             24 June 1998                 
	DOCKET NUMBER:    AC98-07777

	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.	Karen J. Newsome		Chairperson	
	Mr.	Robert W. Garrett		Member	
	Mr.	James P. Huber		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 to an honorable discharge (HD).

APPLICANT STATES:  In effect, that his counsel at the time of discharge advised him to take a chapter 10 and that the discharge would be upgraded after 3 years.  The applicant claims he now realizes that this was counsel’s way of making his case an easy one, and that he is now suffering because of the bad advise.  Additionally, the applicant has submitted a packet of documents in support of his application.  The packet includes a letter from the Metro Dade Police Department, Miami, Florida, which indicates he has had no criminal record, and character references from the following individuals:  his pastor; his landlord; the registrar from his children’s school; his employer; and from three other individuals.  

COUNSEL CONTENDS:  Counsel has submitted no additional contentions or issues.

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

On 6 April 1977 the applicant entered the Regular Army for 3 years at the age of 20.  

The applicant’s record documents no individual acts of valor, achievement, or service warranting special recognition.  However, it does contain a history of disciplinary infractions.  

On 2 June 1977, while still in One Station Unit Training, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for being drunk and disorderly and for disobeying a lawful order.  The resultant punishment for these offenses was forfeiture of $87.00 and 14 days of extra duty and restriction.

On 13 October 1977 a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant, for violation of Article 134 of the UCMJ, for wrongfully possessing marijuana; wrongfully attempting to transfer marijuana; and wrongfully attempting to sell marijuana.

The record also contains documented evidence that the applicant voluntarily requested discharge for the good of the service-in lieu of trial by court-martial, under the provisions of chapter 10 of AR 635-200.  This request was made after the applicant had been advised by counsel of the basis for his contemplated trial by court-martial, the maximum permissible punishment, and of the possible effects of a UOHC.  The applicant, in a statement to the commanding general, stated that he could not adjust to the Army; that he did not want to be rehabilitated; and that he would accept a UOHC.

On 27 October 1977 the appropriate authority approved the applicant's request for discharge and directed issuance of a UOHC.  Accordingly, on 7 November 1977 the applicant was discharged after completing 7 months and 2 days of active military service.

On 13 May 1980 the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge 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, applicable law and regulations, it is concluded:

1.  The Board noted the applicant’s good post service conduct as attested to in the references provided in support of his application.  However, the Board concluded the applicant provided no new evidence on which to reverse the decision of the ADRB, and there is no indication of procedural errors which would tend to have substantially jeopardized the applicant's rights.  The discharge proceedings were conducted in accordance with law and regulation applicable at the time.  The reason for and the character of the discharge are commensurate with the applicant's overall record of military service.

2.  The Board noted the applicant’s contention that he was told his discharge would be upgraded to an HD after 3 years.  The US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a request for change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically state:  "No factors shall be established that require automatic change or denial of a change in discharge.”

3.  There is no corroborating evidence to support the applicant’s contention that he was inadequately represented by counsel. The evidence of record is clear, and shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge, and after consulting with legal counsel, he voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offense under the UCMJ, and attested to his understanding of the possible loss of veterans benefits based on receiving a UOHC.

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 the aforementioned 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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director