MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           28 August 2001
	DOCKET NUMBER:   AR2001052209

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Richard T. Dunber		Member	
	Mr. Donald P. Hupman, 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:  That his under other than honorable conditions (UOTHC) discharge be upgraded.

APPLICANT STATES:  That he was young and foolish and made mistakes.  In support of his application, he provides:  a copy of his DD Form 794A (UOTHC) Discharge Certificate; a copy of a 19 September 1978 letter of debarment; a copy of Orders #262-110 (with 1st Indorsement), dated 19 September 1978, assigning him to the Separation Transfer Point; two copies of his DD Form 214 (Report of Separation from Active Duty), dated 19 September 1978; a copy of his DA Form 2139-1, Military Pay Voucher, dated 20 September 1978; a copy of DA Form 664, Service Member's Statement Concerning Application for Compensation from the Veterans Administration; a copy of DA Form 1811, Physical Data and Aptitude Test Scores upon Release from Active Duty; a copy of DA Form 137, Installation Clearance Record, dated 19 September 1978; and four letters of support from friends.

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

He was born on 7 September 1959 and enlisted in the US Army Reserve (USAR) Delayed Entry Program (DEP) on 9 February 1977.  On 26 July 1977, he was discharged from the USAR; he enlisted in the Regular Army for 4 years on 27 July 1977.

The applicant underwent One-Station Unit Training at Fort Sill, Oklahoma from 2 August 1977 through 20 October 1977.  He was awarded military occupational specialty (MOS) 13B10, Cannon Crewman, and assigned to B Battery, 3rd Battalion/21st Field Artillery, Fort Polk, Louisiana on 2 November 1977.

On 23 June 1978, the applicant departed his unit in an absent without leave (AWOL) status.  He remained absent until he surrendered to military authorities at Fort Sill on 17 August 1978, at which time he was returned to military control and assigned to the Personnel Control Facility at Fort Sill.

On 25 August 1978, the applicant was charged with AWOL (780623-780817).  On the same date, he consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense.  Further, he stated that he understood that he could receive a discharge under other than honorable conditions (UOTHC) and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant submitted a statement on his own behalf in which he claimed that he was disillusioned with the Army -- he didn't like being where he did not want to be, and when he said that he wouldn't do something, he meant it, but in the Army such a refusal only got him in trouble.  The unit commander and intermediate commander recommended approval of the discharge UOTHC.  On 12 September 1978, the separation authority approved the discharge with a UOTHC discharge.  The applicant was to be reduced to the lowest enlisted rank. 

On 19 September 1978, the applicant was discharged with a UOTHC discharge, under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial.  At the time of discharge, the applicant had 1 year of creditable service on his enlistment and 55 days of lost time.

There is no evidence that applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade within the 15-year statute of limitations imposed by that board.

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 evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The Board noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offense under the UCMJ.  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.  It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.

3.  The Board notes that the applicant was born on 7 September 1959 and was almost 19 years old when he entered on active duty and almost 20 years old when he went AWOL.  The applicant met entrance qualification standards to include age.  No evidence has been presented to show that the applicant was any less mature than other soldiers of the same age who successfully completed military service.

4.  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

_JNS ___  __RTD__  ___DPH__  DENY APPLICATION

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

INDEX

CASE ID	AR2001052209	
SUFFIX		
RECON		
DATE BOARDED	20010828	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19780919	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.