MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            6 July 2000
	DOCKET NUMBER:   AR1999026475

	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. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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 (UOTHC) discharge be upgraded. 

APPLICANT STATES:  The applicant makes no specific comments regarding his request for a discharge upgrade but does provide the four award certificates enclosed, in support of his request.  These certificates include a Certificate of Appreciation, dated 1 March 1995, and two Army Achievement Medal (AAM) Certificates, dated 26 September 1995, issued by the commander of the 
6th Battalion of the 37th Field Artillery; and two Army Commendation Medal (ARCOM) Certificates, dated 21 November 1995 and 24 January 1996, issued by the commander of the 2nd Infantry Division Artillery.

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

On 14 July 1994, he enlisted in the Regular Army for 3 years.  He successfully completed basic training and advanced individual training (AIT) at Fort Sill, Oklahoma.  Upon completion of AIT he was awarded military occupational specialty 13M (Multiple Launch Rocket Systems Crewmember) and he was assigned overseas to Korea for his first permanent duty station.

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) indicates in block 5 (Overseas Service) that the applicant completed a tour in Korea on 22 November 1995.  Block 18 (Promotions and Reductions) shows that he attained the rank of specialist/E-4, the highest rank he held on active duty, on 1 October 1995.  Block 35 (Record of Assignments) indicates that the applicant was assigned to Fort Sill, Oklahoma upon completion of his tour in Korea and that he arrived there for duty in January 1996.

His disciplinary history, prior to the incident which ultimately led to his discharge, included his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 8 May 1996.  He accepted this NJP for wrongfully using cocaine, a controlled substance, between 2 and 22 March 1996.  His punishment included his reduction to private/E-2; a forfeiture of 2/3 of his pay for 2 months (one month suspended); and 45 days of restriction and extra duty.  As a result of this NJP action and the offense for which is was imposed, the applicant was barred from reenlistment on 10 May 1996.

On 28 March 1997, the applicant went absent without leave (AWOL) from his unit at Fort Sill, Oklahoma and on 27 April 1997, he was dropped from the rolls (DFR) of his organization.  The applicant remained away for 177 days until he returned to military control at Fort Sill on 21 September 1997.  

On 24 September 1997, a Department of Defense (DD) Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for going AWOL from his unit on 28 March 1997 and remaining away until on or about 22 September 1997.  

On 25 September 1997, the applicant, after consulting legal counsel and being advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, and the possible effects of a UOTHC, voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10 of Army Regulation 
635-200.  

In his request for discharge the applicant acknowledged his understanding of the offense with which he was charged and admitted his guilt to the charge against him.  He also stated his understanding that he could be discharged UOTHC and that as a result he could be deprived of many or all Army benefits, he could be ineligible for veterans benefits administered by the Department of Veteran Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under Federal and State law.  He also stated his understanding that he could expect to encounter substantial prejudice in civilian life because of the UOTHC discharge.

On 17 November 1997, the appropriate authority approved the applicant’s request for discharge and directed that the applicant receive an UOTHC discharge and that he be reduced to the lowest enlisted grade.  Accordingly, on 
5 December 1997, the applicant was separated after completing 2 years, 
10 months, and 24 days of creditable active military service and having accrued 177 days of time lost due to AWOL.

On 18 February 2000, the Army Discharge Review Board 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 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.

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 award certificates submitted by the applicant in support of his request but determined these were insufficiently mitigating to warrant an upgrade of the discharge under review.  The evidence of record 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 defense counsel, he voluntarily requested separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.  

2.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process and that the character of the applicant’s discharge is commensurate with his overall record of service.  The Board also noted that characterization of service for this type of discharge is normally UOTHC and that the applicant was aware of that prior to requesting discharge. 

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 this 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

___cmf__  __ew____  ___jpi ___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999026475	
SUFFIX		
RECON		
DATE BOARDED	2000/07/06	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1997/12/05	
DISCHARGE AUTHORITY	AR 635-200 C10 	
DISCHARGE REASON	Good of the Svc/In Lieu of Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.