MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:             22 March 2001
	DOCKET NUMBER:    AR2000045777

	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. Antoinette E. Jones-Farley		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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 reviewed and upgraded to an honorable discharge.
 
APPLICANT STATES:  He was told that after 7 years grace period he would be able to upgrade his discharge, but was unaware of what the procedures were.  He submits no additional information in support of his case.

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

On 28 April 1983, he enlisted in the Regular Army for a period of 4 years.  He completed his basic training and his advanced training in military occupational specialty (MOS) 62E (Heavy Construction Equipment Operator) at Fort Benning, Georgia on 26 August 1983.  On 15 September 1983, he was transferred to Fort Bragg, North Carolina for duty.  On 28 April 1984, he was advanced to the rank of private first class, pay grade E-3.

While assigned to Fort Bragg, the applicant received two nonjudicial punishments under Article 15, Uniform Code of Military Justice, (UCMJ) for being absent without leave (AWOL).  On 27 June 1985, the first NJP was imposed for being AWOL from 18 to 25 June 1985.  His punishment included forfeiture of $100 pay and reduction to pay grade E-2, suspended for 60 days and 14 days extra duty.  On 1 August 1985, the suspension of punishments was vacated when he went AWOL again on 31 July 1985.

On 13 August 1985, the second NJP was imposed for again being AWOL from 
31 July to 4 August 1985.  His punishment included forfeiture of $144.00 pay, extra duty for 14 days, reduction to pay grade E1, suspended for 180 days and 
14 days extra duty.  This punishment was vacated on or about 20 August 1985, when he went AWOL.  He was apprehended and returned to military control on 
1 October 1985. 

On 17 October 1985, he was charged with being AWOL from 20 August 1995 to 
1 October 1985.

On 21 October 1985, the applicant consulted with legal counsel and voluntarily requested discharge under the provisions of chapter 10, Army Regulation AR 635-200, in lieu of trial by court-martial.  He was advised that the offenses for which he was charged could lead to a UOTHC discharge.  He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UOTHC discharge, and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Veterans Administration.  He did not submit a statement in his own behalf.  The applicant’s chain of command recommended approval with a UOTHC discharge.

On 25 October 1985, the separation authority approved his request for discharge.
On 8 November 1985, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with a UOTHC discharge.  He had 2 years, 4 months and 9 days of creditable service and had 63 days of lost time.

On 28 June 2000, the Army Discharge Review Board denied his requested to upgrade 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.  Army policy states that although an honorable or general discharge is authorized, a discharge UOTHC 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.  The applicant's voluntary request for a chapter 10 discharge, for the good of the service, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  There is no indication that he received less than competent legal counsel or that his request was made under coercion or duress. 

3.  The applicant’s entire record of service was considered during the review of this case.  The Board notes that the applicant had several periods of AWOL which were not consistent with the Army standards for acceptable personal conduct and performance by military personnel.  Therefore, the Board was convinced that the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

4.  The US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a request for a change in discharge from the ADRB or this Board.  

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

__slp____  __jpi____  __rks____  DENY APPLICATION

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

INDEX

CASE ID	AR2000045777	
SUFFIX		
RECON		
DATE BOARDED	20010322	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19790710	
DISCHARGE AUTHORITY	AR 635-200/CH10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	144.0O	
3.		
4.		
5.		
6.