MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            26 May 1999
	DOCKET NUMBER:   AR1999023324

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Barbara J. Ellis 		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:  That his discharge under other than honorable conditions be upgraded to honorable and his narrative reason for separation be changed to convenience of the government.

APPLICANT STATES:  That he was unfairly treated in the service.  He also states that one of the other soldiers’ confessed to breaking an officer’s auto windshield and that he was charged with the crime for failure to reveal the true identity of the soldier who actually committed the crime.  He further states that he did not have personal knowledge and did not witness the crime.  He goes on to state that he has suffered enough for something he did not do.  He concludes by stating that he is currently wheel chair bound due to an accident and receiving social security benefits and is unable to receive VA benefits with his current discharge.  In support of his application he submits a copy of his DD Form 214 and four character references.

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

The applicant initially enlisted in the Ohio Army National Guard (OARNG) on 14 April 1975 as a wheel vehicle mechanic.  He was ordered to initial active duty for training (IADT) on 1 August 1975 and was released from IADT on 20 March 1976 and returned to control of the OARNG.  He continued to serve in the OARNG until he was discharged on 5 January 1977.

On 6 January 1977, he was ordered to involuntary active duty in the Regular Army and was honorably discharged on 20  February 1978.  

He enlisted in the Regular Army 21  February 1978.

The applicant’s personnel records show that he departed AWOL on four occasions totaling approximately 11 days. 

On 9 June 1978, nonjudicial punishment was imposed against the applicant for being disrespectful toward a commissioned officer.  His punishment consisted of a reduction to the pay grade of E-3 and a forfeiture of pay.

The applicant underwent a mental evaluation 11 July 1978, which determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to participate in administrative or judicial proceedings.

The applicant underwent a separation medical examination on 11 July 1978 and 
was found qualified for separation with an 111111 physical profile. 

The facts and circumstances pertaining to the applicant’s discharge are not present in the available records.  However, his DD Form 214 shows that on
25 July 1978, he was discharged under the provisions of Army Regulation
635-200, chapter 10, in lieu of trial by court-martial.  He had served 3 years, 10 months and 21 days of lost time due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for 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.  However, at the time of the applicant’s separation the regulation provided for the issuance of a discharge under other than honorable conditions.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3-6 of that regulation provides, in pertinent part, that a discharge under other than honorable conditions or a bad conduct discharge may or may not deprive the soldier of veterans benefits administered by the Veterans Administration (VA); a determination by that agency is required in each case.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The Board noted the applicant’s contentions that he was treated unfairly in the service and that he was charged with a crime that he did not commit; however, there is no evidence in the available records, and the applicant has provided no evidence, to support his contentions.

2.  While the Board is empathetic, it does not upgrade discharges to make individuals eligible for VA benefits.  

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural error which would tend to jeopardized his rights.

4.  The type of separation directed and the reasons therefor were appropriate considering all of the facts of the case.

5.  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.

6.  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

MDM____  AAO____  BJE_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023324	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990526	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19780725	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  191		
2.		
3.		
4.		
5.		
6.