MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             8 September 1999
	DOCKET NUMBER:    AR1999017801

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

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Karen L. Wolff		Member	
	Mr. Orville W. Troesch, Jr.		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)

APPLICANT REQUESTS:  In effect, that his under other than honorable conditions (UOHC) discharge be upgraded to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that he thought his discharge would be upgraded automatically after 6 months.  

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

On 30 July 1985, the applicant entered the Regular Army for 3 years.  He successfully completed One Station Unit Training (OSUT) at Fort Sill, Oklahoma. Upon completion of OSUT he was assigned overseas to Germany for his first permanent duty station.  

The applicant’s record shows that he completed almost 3 years of service, that the highest rank he attained while on active duty was private first class/E-3, and that he earned an Army Achievement Medal.  The record documents no other acts of valor, significant achievement, or service warranting special recognition.  However, the record does include an extensive history of disciplinary infractions which includes the applicant’s  acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ; on three separate occasions.

On 27 September 1987, the applicant accepted an NJP for two specifications of disobeying a lawful order; for being derelict in the performance of his duty, for failing to go to his prescribed place of duty, and for missing movement.  His punishment for these offenses included a reduction in rank to private/E-2; a forfeiture of $150.00; and 14 days of extra duty and restriction.

On 25 January 1988, the applicant accepted his second NJP for failing to go to his prescribed place of duty.  His punishment included a reduction in rank to private/E-1; and 14 days of restriction and extra duty.

On 30 March 1988, the applicant accepted his last NJP for willfully disobeying a lawful order.  His punishment included a forfeiture of $300.00 and 45 days of restriction and extra duty.

The available records do not contain a court-martial charge sheet (DD Form 458); however, there is a memorandum from the Staff Judge Advocate which lists a summary of six court-martial changes that were preferred against the applicant.  The six specific charges were as follows:  Charge I-violation of Article 86, for failure to go to his prescribed place of duty; Charge II-violation of Article 86, for being AWOL from 22 May to 1 June 1988; Charge III-violation of Article 92, for wrongfully possessing a device to smoke hashish; Charge IV, violation of Article 112a, for wrongfully possessing an unknown quantity of hashish; Charge V-violation of Article 113, for leaving his post prior to being properly relieved; and Charge VI, three specifications of violation of Article 134 for breaking restriction.
The specific facts and circumstances surrounding the applicant’s discharge, under the provisions of Chapter 10, AR 635-200, for the good of the service-in lieu of trial by court-martial are not on file.  However, the evidence of record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), signed by the applicant, which documents the following:  Character of Service-UOHC; Authority for Separation-Chapter 10, AR 635-200; and Narrative Reason for Separation-For the Good of the Service-In Lieu of Court-Martial.

The DD Form 214 also shows that the applicant was discharged on 26 July 1988 after completing 2 years, 11 months, and 17 days of active military service, and accruing 10 days of time lost due to AWOL.

On 6 August 1999, the Army Discharge Review Board denied the applicant’s request for an upgrade to his discharge and found that the discharge process was proper and equitable 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 for soldiers separating under this chapter.

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 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 requests a 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.  However, after carefully reviewing the applicant’s record of service for the enlistment under review, the Board determined there was no basis for relief in this case.  

2.  While the applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army, the applicant’s record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) which was authenticated by the applicant.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time, and that the character of the discharge is commensurate with the applicant’s overall record of service.
3.  The evidence of record shows that the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.

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

__klw ___  __fkm___  __owt ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999017801	
SUFFIX		
RECON		
DATE BOARDED	1999/09/08	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1988/07/26	
DISCHARGE AUTHORITY	AR 635-200, C10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.00	
2.  807	A92.17	
3.		
4.		
5.		
6.