MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           16 November 2000
	DOCKET NUMBER:   AR2000043115

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Martha E. Schuler		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 honorable.

APPLICANT STATES:  In effect, that since he was about to be discharged, he thought requesting a Chapter 10 would be easier for everyone than going through a court-martial; that he was young and immature when he committed his misconduct; that he is now sober and clean; and that he has turned his life around.  He further states that he now regrets the UOHC discharge; that he is asking for leniency; and that he is seeking an upgrade of his discharge to obtain Department of Veterans Affairs (VA) medical services for the treatment of hepatitis, which he contracted while in the Army.

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

On 12 September 1978, the applicant enlisted in the Regular Army for a period of 3 years.  He enlisted for the United States Army Training of Choice Enlistment Option – military occupational specialty (MOS) 12B Combat Engineer.  He completed one station unit training (OSUT) at Fort Leonard Wood, Missouri.  Upon completion of OSUT, he was awarded MOS 12B Combat Engineer and was assigned to Germany.

Between 27 November 1978 and 18 August 1980, the applicant was promoted through the ranks from private/E-1 to private first class/E-3.  During this time, the applicant also accepted three nonjudicial punishments (NJP) under the provisions of Article 15, Uniform Code of Military Justice, once for disobeying a lawful order and twice for being disrespectful to a noncommissioned officer (NCO).  His punishments consisted of twice being reduced in grade and 14 days restriction and extra duty.

On 3 September 1980, the applicant was admitted to a United States Army Hospital in Heidelberg, Germany for evaluation and was diagnosed with acute hepatitis.

On 4 December 1980, the applicant was promoted to the rank of private/E-2.

Although the charge sheet is not in the file, the evidence on record, a Criminal Investigation (CID) Report, indicates the applicant was charged with wrongful possession, sale, and transfer of 13.66 grams of marijuana in the hashish form.

On 19 August 1981, having been advised by counsel, the applicant requested discharge under the provisions of Chapter 10, Army Regulation (AR) 635-200 in lieu of trial by court-martial.  

On 21 August 1981, the company and battalion commanders recommended disapproval of the Chapter 10 request and approval of the court-martial.  The intermediate commander recommended approval with a UOHC.  The Staff Judge Advocate found the file to be legally sufficient and recommended approval of the discharge.  

On 21 August 1981, the appropriate authority approved the applicant’s request for discharge and directed issuance of a UOHC and a reduction in rank to private/E-1.  

On 10 September 1981, the applicant waived his rights to a physical examination.  On 14 September 1981, a mental evaluation cleared the applicant for separation.

On 14 September 1981, the applicant was discharged from the Army after completing 3 years and 3 days of active military service.

On 3 February 1988, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade 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 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 congratulates the applicant on his successful transition to civilian life since departing the Army.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board noted that the applicant met entrance qualification standards to include age.  The Board further found no evidence that the applicant was any less mature than other soldiers of the same age who successfully completed military service.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  Discharge was effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was separated.

4.  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.

5.  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 VA benefits.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.  Further, determining eligibility for medical treatment through the VA is not within the purview of this Board.

6.  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.

7.  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

__wtm___  __jea___  __mes___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043115	
SUFFIX		
RECON		
DATE BOARDED	20001116	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19810914	
DISCHARGE AUTHORITY	AR 535-200, Chapter 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DASA	
ISSUES         1.	144.9235	
2.	144.7005	
3.	144.9301	
4.	144.9221	
5.	144.9439	
6.	144.9223