MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 May 2000
	DOCKET NUMBER:   AR2000036315

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Stanley Kelley		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:  That his discharge under other than honorable conditions be upgraded to an honorable or a general discharge.

APPLICANT STATES:  In effect, that he was told at the time of his separation from the Army that his discharge would be automatically upgraded.  He further states that he now has a medical condition and he needs to obtain VA benefits.

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

On 9 November 1973, he enlisted in the Army for 4 years in the pay grade of 
E-1.  He successfully completed his training as an armor reconnaissance specialist.

Nonjudicial punishment was imposed against the applicant on 26 November 1974, for dishonorably failing to pay a debt.  His punishment consisted of a reduction in pay grade and a forfeiture of pay.

On 24 March 1975, NJP was imposed against him for being AWOL from 3 March until 19 March 1975 and from 20 March until 23 March 1975.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

The applicant had NJP imposed against him on 14 October 1975, for leaving guard watch.  His punishment consisted of a reduction in pay grade, a forfeiture of pay and extra duty.

He had NJP imposed against him a fourth time on 8 July 1977, for stealing cigarettes.  His punishment consisted of a reduction in pay grade and extra duty.

Department of the Army Form 268 (Report for Suspension of Favorable Personnel Action) dated 5 October 1977 shows that the applicant was possibly pending a general court-martial for aggravated assault.

The facts and circumstances pertaining to the applicant's discharge are not on file.  The Report of Separation, DD Form 214, indicates that the applicant was discharged on 26 May 1978, under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  His DD Form 214 also shows that he was retained in the service for 209 days past the expiration of his term of service for the convenience of the government.  He had completed 4 years, 5 months and 27 days of total active service and he had 21 days of lost time due to AWOL.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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 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.  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.

2.  His contentions have been noted by the Board.  However, there is no evidence of record nor has the applicant submitted any evidence to substantiate his contention that he was told that his discharge would be upgraded.  The records clearly shows that he had NJP imposed against him four times and he was pending trial by a general court-martial for assault prior to submitting his request for discharge for the good of the service in lieu of trial by court-martial.   

3.  While the Board is empathetic, the applicant's medical problems are not sufficiently mitigating to warrant an upgrade of his discharge.

4.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

5.  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

___sk___  ___jev __  ___jpi ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036315	
SUFFIX		
RECON		
DATE BOARDED	2000/05/31	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1978/05/26	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  708	144.7100/A71.00/AWOL	
2.  713	144.7110/A71.10/absent from appointed place	
3.  715	144.7200/A72.00/larceny	
4.  716	144.7300/A73.00/assault	
5.		
6.