MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 December 2000
	DOCKET NUMBER:   AR2000043925

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Harry B. Oberg		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 honorable.

APPLICANT STATES:  In effect, that his discharge was supposed to have been upgraded to an honorable discharge 6 months after his separation from the service and has not yet been done.  He goes on to state that he was told that he was to receive all of his benefits if he complied with the offer the Army made him.  He further states that he took the advise of a Judge Advocate General (JAG) officer to take the offer and leave the service.  He also states that he completed his advanced individual training and was supposed to go overseas as permanent party; however, the company commander made a mistake.  Additionally, he contends that the Army reneged on its deal and contends that he should receive an honorable discharge. 

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

He enlisted in Des Moines, Iowa on 2 September 1976 for a period of 3 years and assignment to Europe.  He was transferred to Fort Knox, Kentucky to undergo basic training and nonjudicial punishment was imposed against him on 7 October 1976 for being absent from his place of duty.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 21 October 1976, nonjudicial punishment was imposed against him for being in an off-limits area.  His punishment consisted of a forfeiture of pay, extra duty and restriction.  He completed his basic training and was transferred to Fort Benning, Georgia to undergo advanced individual training (AIT) as an infantryman. 

On 3 November 1976, nonjudicial punishment was imposed against him for the wrongful possession of marijuana.  His punishment consisted of a forfeiture of pay.

The applicant completed his AIT and orders were published on 26 November 1976 transferring him to Germany on or about 4 January 1977.  However, the applicant went absent without leave (AWOL) on 5 January 1977 and remained absent until he was returned to military control on 13 January 1977.

On 27 January 1977 charges were preferred against the applicant for being AWOL from 5 January to 13 January 1977, for wrongfully selling marijuana, and for communicating a threat to do bodily harm to another soldier.

The applicant again went AWOL from 18 February to 20 February and again on 28 February 1977.  He remained absent until he was apprehended by civil authorities in Cheasapeake, Virginia for assaulting a police officer on 23 July 1977.  He was confined at the North Hampton Prison in Easton, Pennsylvania until he was returned to military control at Fort Dix, New Jersey on 30 March 1978.

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214) which shows that he was discharged under other than honorable conditions on 19 April 1978, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  He had served 5 months and 2 days of total active service and had 440 days of lost time due to AWOL and confinement.

There is no indication in the available records to show that the applicant ever applied to the Army Discharge Review Board (ADRB) 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 the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge.  A discharge under other than honorable conditions is normally considered appropriate and there have never been any automatic provisions for an upgrade of such a discharge.

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 the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.

2.  Accordingly, the type of discharge and the reasons therefore were appropriate considering the facts of the case and the seriousness of the charges against him.

3.  The applicant’s contentions have been noted by the Board; however, they are not supported by either the evidence submitted with his application or the evidence of record.  Accordingly, considering the circumstances of this case, and his otherwise undistinguished record of service during such a short period of time, there appears no basis to warrant an upgrade of his discharge.
4.  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.

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

___fe ___  __lem___  __hbo ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043925	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/12/12	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1978/04/19	
DISCHARGE AUTHORITY	AR635-200/ch10	
DISCHARGE REASON	Gd of svc	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/gd of svc	
2.		
3.		
4.		
5.		
6.