MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           7 September 2000  
	DOCKET NUMBER:  AR2000036149

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Aldolphi		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas B. Redfern III		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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 

APPLICANT STATES:  In effect, that his first period of enlistment was honorable.  He was forced into a second period of enlistment and he was separated with a UOTHC when he did not agree with his command’s conditions.

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

Prior to the period of enlistment under review, he completed an honorable period of service in the Regular Army (RA) from 18 July 1974-27 June 1977.  During this period of service he had two nonjudicial punishments (NJP’s) under the provisions of Article 15, Uniform Code of Military (UCMJ) for two 1-day periods of being absent without leave (AWOL).  On 28 June 1977, he reenlisted in the RA for a period of 3 years in pay grade E-4 and duty in his previous military occupational specialty (MOS) 12B (Combat Engineer).

On 18 August 1977, the applicant accepted NJP for being AWOL from his unit from 
15-16 August 1977.  His punishment included reduction from pay grade E-4 to pay grade E-3, forfeiture of $75.00 pay (both suspended for 30 days) and 
7 days extra duty and restriction.  

On 9 January 1978, court-martial charges were preferred against him for being AWOL from his unit from 7 November 1977-7 January 1978. 

On the same day, a physical examination cleared the applicant for separation from the service. 

On 12 January 1978, he consulted with legal counsel and requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.  He was advised that the offense for which he was charged could result in a punitive discharge.  He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UOTHC discharge.  He did not submit a statement in his own behalf.

On 13 January 1978, the applicant’s unit commander recommended that his request be approved with a UOTHC discharge.  On 20 January 1978, the battalion commander recommended separation with a UOTHC discharge.  On an unknown date, competent authority approved his request.

On 1 February 1978, he was separated with a UOTHC discharge by reason of an administrative discharge for conduct triable by court-martial, under the provisions of chapter 10, Army Regulation 635-200.  He had completed 5 months and 3 days of active military service on the period of enlistment under review and he had 61 days lost time due to AWOL.  He also had completed 2 years, 11 months, and 10 days of active military service on his prior period of enlistment. 
There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge.  

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Although, an honorable or general discharge is authorized, a UOTHC discharge 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.  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.

2.  There is nothing in the applicant’s record to show that he was pressured into reenlisting in the military and he has provided nothing to the contrary.

3.  His 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 then in effect.  There is no indication that the request was made under coercion or duress.

4.  The Board took into consideration the applicant’s prior period of honorable service, to include his misconduct during that period of service, and concluded that it was not sufficiently mitigating to warrant an upgrade of the discharge under review.

5.  Therefore, the type of discharge directed and the reason for the discharge was appropriate considering the facts of the case.

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

__cla____  __wtm___  __tbr ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036149	
SUFFIX		
RECON		
DATE BOARDED	20000907	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19780201	
DISCHARGE AUTHORITY	AR635-200, CHAPTER 10  	
DISCHARGE REASON	A71.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7100	
2.		
3.		
4.		
5.		
6.