MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            3 April 2001                  
	DOCKET NUMBER:   AR2001051973

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Thomas Baxter		Member	
	Mr. John T. Meixell		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 (UOTHC) be upgraded to honorable.

APPLICANT STATES:  The applicant submitted two applications.  He states, in effect, that he was not discharged for a disciplinary action and that he put himself out of the Army.  Following a reenlistment, he states that he was guaranteed one year stateside, but one month later he received orders for overseas.  He also states that was advised by a friend in the Judge Advocate General’s office regarding his discharge.  He further states that he already had an honorable discharge and that he reenlisted in good faith.  

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

The applicant enlisted in the Regular Army on 15 May 1979, completed training as a unit supply specialist, and was assigned to Fort Rucker, Alabama.  He reenlisted on 17 November 1981 for a period of three years.  

Records show that the applicant received a letter of reprimand on 14 June 1982 for failing to show up for parade duty.

The applicant received nonjudicial punishment on two separate occasions for failing to go to his appointed place of duty (four specifications), for purposely avoiding duty by refusing to work at his appointed place of duty, and for being absent without leave (AWOL) for the period 2 September 1982 to 13 September 1982

Evidence of record shows the applicant was confined by civil authorities from 20 September 1982 to 21 September 1982.

Charges were preferred against the applicant on 24 November 1982 for failing to go to his appointed place of duty (nine specifications) and failing to obey a lawful order.

On 17 December 1982, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all benefits administered by the Veterans Administration if an under other than honorable discharge were issued.  He elected not to submit a statement in his own behalf. 

The unit and intermediate commanders recommended disapproval of the applicant’s request for discharge.  On 5 January 1983, the separation authority approved the applicant’s request for discharge with an under other than honorable conditions discharge.  The applicant was discharged on 7 January 1983 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 3 years, 7 months and 9 days of creditable service and 14 days of lost time due to AWOL and confinement.

There is no indication in the applicant’s records which shows he applied to the Army Discharge Review Board within its 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.  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.

2.  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.

3.  The Board noted the applicant’s contention that he was not discharged as a result of a disciplinary action and that he put himself out of the Army.  However, his records show he received a letter of reprimand and two nonjudicial punishments for several acts of indiscipline.  His request for a chapter 10 discharge, 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.

4.  Therefore, the type of discharge directed and the reasons for his separation were appropriate considering all the facts of the case.

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

wtm_____  tb______  jtm______  DENY APPLICATION

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

INDEX

CASE ID	AR2001051973	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010403	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19830107	
DISCHARGE AUTHORITY	AR635-200,chapter 10	
DISCHARGE REASON	For the good of the Service-in lieu of trial by court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.