MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            6 January 2000
	DOCKET NUMBER:   AR1999029124

	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.

	Ms. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Allen L. Raub		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 (UOHC) be upgraded to a general, under honorable conditions (GD).

APPLICANT STATES:  In effect, he was advised that if he agreed to voluntarily request separation in lieu of trial by court-martial, he would receive a general, under honorable conditions discharge.  He further states that the DD Form 214 in his official service record is not the same copy he signed at the time of his discharge.  

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

On 10 November 1976 he enlisted in the Regular Army for a period of 3 years.  He successfully completed basic combat training at Fort Knox, Kentucky, and advanced individual training (AIT) at Fort Benning, Georgia.  Upon completion of AIT he was awarded military occupational specialty (MOS) 11B (Infantryman), and assigned to Camp Casey, Korea. 

The applicant’s record documents that the highest permanent rank he held on active duty was private first class/E-3 and the record contains no documented acts of valor, achievement, or service warranting special recognition.

On 4 September 1977 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for violating a lawful general order.  His punishment included reduction to private/E-2, forfeiture of $50, 14 days extra duty, and 7 days restriction.

On 3 February 1978 he was convicted by special court-martial (SPCM) for being AWOL and for violating a lawful general order by making commissary purchases in excess of prescribed limits.  He was sentenced to confinement at hard labor for 5 months and forfeiture of $150 per month for 5 months. 

On 22 March 1978 the applicant was transferred to the Retraining Brigade at Fort Riley, Kansas, to serve a period of 8 weeks. 

On 14 April 1978 the confinement at hard labor was suspended until 21 August 1978 unless sooner vacated.

On 2 May 1978 the applicant departed AWOL.  He surrendered to military authorities at Fort Gordon, Georgia, on 7 October 1980.   

On 15 October 1980 the applicant voluntarily requested discharge for the good of the government in lieu of trial by court-martial.  On 15 October 1980, under his own signature, he indicated that he was aware of the nature of his discharge process and the consequences of an under other than honorable conditions discharge.  He further indicated that he requested discharge in order to return to his contract business in Florida.  Thereafter he was separated on 30 July 1981 under the provisions of Chapter 10, AR 635-200, with an under other than honorable conditions discharge.  He was credited with 2 years and 1 month active military service.

Army Regulation 635-200, then in effect, sets forth 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. 

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

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 discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant’s overall record of military service.  

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

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 the aforementioned 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

___ew___  ___sk___  ___alr___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029124	
SUFFIX		
RECON		
DATE BOARDED	20000106	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19810730	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	7100	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  9217		
 2.  0100		
 3.  9500		
 4.		
 5.		
 6.