PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 January 2000                   
	DOCKET NUMBER:   AR1999026227

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mrs. Joyce A. Hughes		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Margaret V. Thompson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.   The applicant requests, in effect, that his discharge under other than honorable conditions (UOTHC) be upgraded.  He states, in effect, he wasn’t given a chance to represent himself.  The evidence that was presented was not directed to the person responsible. 

3.   The applicant's military records show he enlisted in the Regular Army on 20 September 1978.  He was honorably discharged on 29 April 1981, after serving 
2 years, 7 months and 9 days.  He immediately reenlisted on 30 April 1981, for six years.  The highest pay grade achieved was E-3.

4.   On 30 July 1981, the applicant accepted NJP for being absent without leave (AWOL) from 22 June to 28 June 1981.  His imposed punishment was a reduction to pay grade E-2, a forfeiture of $136.00 pay, 14 days extra duty and 14 days restriction.

5.   On 24 March 1982, court-martial charges were preferred against the applicant for conspiring to commit larceny of marihuana, breaking and entering a barracks room with intent to commit larceny and for stealing  (marihuana). 

6.   On 9 July 1982, the applicant consulted with legal counsel and voluntarily 
requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  The applicant
was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He was afforded the opportunity to submit statements in his behalf, but he declined to do so.

7.   A mental and a physical evaluation found the applicant fit for retention.

8.   On 14 July 1982, the appropriate authority approved the applicant’s request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 22 July 1982, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of service with a discharge UOTHC.  He completed 
3 years, 9 months and 27 days of total active service.

9.   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 included 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.  A discharge UOTHC is normally considered appropriate

10.   The VA, in determining qualifications for benefits administered by that agency, generally holds that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until the VA determines that the early discharge amounted to a complete and unconditional separation from the service.

CONCLUSIONS:

1.   The applicant’s voluntary request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.   The overall quality of the applicant’s last period of service does not warrant an upgrade of his discharge, but in view of the honorable characterization of his prior terms of service, his honorable discharge on 29 April 1981, should be considered a complete and unconditional separation.

3.   The circumstances of the applicant’s honorable discharge on 29 April 1981, have worked an injustice upon him by depriving him of consideration for certain
VA benefits for the preceding period of service.

4.   In consideration of the foregoing findings and conclusions, and in recognition of his more than 2 ½ years, of good service, it would be unjust to consider his honorable discharge of 29 April 1981, as other than a complete and unconditional separation from the military service.

RECOMMENDATION:

     That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 29 April 1981.

BOARD VOTE:  

__emw___  __ewl___  __mvt___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Ernest M. Willcher
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999026227	
SUFFIX		
RECON		
DATE BOARDED	20000113	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19820722	
DISCHARGE AUTHORITY	AR635-200, Chap 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.