MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            30 January 2001
	DOCKET NUMBER:   AR2000047666

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Brenda F. Hirschi		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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:  In effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that the type discharge he received was unjust because he had already completed three years of honorable service and the reason for his separation was insignificant.  In addition, he claims that he was not given ample opportunity to defend himself.  

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

On 25 April 1978, he enlisted in the Regular Army for three years.  He successfully completed basic training and advanced individual training (AIT) at Fort Dix, New Jersey.  Upon completion of AIT he was awarded military occupational specialty 64C (Motor Transport Operator) and assigned to Fort Bragg, North Carolina for his first permanent duty station.

The applicant’s service record documents no acts of valor, significant achievement, or service warranting special recognition during his tenure on active duty.  However, it does contain an extensive disciplinary history for the enlistment under review, prior to the incident which ultimately led to his discharge.  This includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on two separate occasions.  The first on 7 March 1979, for wrongfully possessing marihuana and the second on 10 April 1981, for wrongfully disobeying the lawful order of a superior commissioned officer.  

His punishment for the 10 April 1981, NJP included a reduction in rank from private first class (PFC) to private/E-1 (PV1); a forfeiture of $200.00 per month for two months and correctional custody for 30 days, all of which was suspended for 90 days.  The suspension was vacated and the punishment imposed within the 90 day suspension period based on an additional incident of misconduct. 

The record does not include a separation packet containing the specific facts and circumstances pertaining to the applicant’s separation processing.  However, it does contain a properly constituted Department of Defense (DD) Form 214 (Certificate of Release or Discharge from Active Duty), which was issued to the applicant on the date of his discharge. 

This document confirms that the applicant was discharged on 8 June 1981, under the provisions of chapter 10, Army Regulation 635-200, by reason of “administrative discharge-conduct triable by court-martial.”  It also shows that at the time of his separation he had completed 2 years, 9 months, and 13 days of creditable active military service and that he had accrued a total of 123 days of time lost due to being absent without leave (AWOL).

There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge within the 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  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 noted the applicant’s contention that his discharge was unjust based on his overall record of service and the insignificance of his offenses. However, the Board finds these claims lack merit.  

2.  There is no separation packet, containing the facts and circumstances pertaining to the applicant’s separation processing and the specific events that led to his discharge in the records.  However, there is a properly constituted 
DD Form 214 on file, which identifies the reason and characterization of the discharge and lacking evidence to the contrary, the Board presumed Government regularity in the discharge process.

3.  The evidence of record shows the applicant 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.  In connection with such a discharge, he would have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  

4.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process, and that the characterization of service was commensurate with his overall record of service.

5.  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.

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

___ao___  ___bfh __  __teo ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000047666	
SUFFIX		
RECON		
DATE BOARDED	2001/01/30	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1981/06/08	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	Good of the Service-In Lieu of Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.