MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 September 2001
	DOCKET NUMBER:   AR2001058227

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Eric N. Andersen		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 a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that he served in the Army with no disciplinary problems prior to the incident which led to his separation and this honorable service should be considered in determining if his discharge should be upgraded. He further states that he was pressured into requesting separation from the Army in lieu of trial by court-martial.

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

On 12 April 1979, the applicant enlisted in the Army for 3 years.  The highest rank he attained while serving on active duty was private (E-2).  He successfully completed basic combat training, advanced individual training, and he was subsequently assigned to Fort Campbell, Kentucky.  On 27 August 1980, he accepted nonjudicial punishment (NJP) for disobeying a lawful order, being drunk and disorderly, and for striking another soldier in the face with fist.  

The applicant’s discharge packet containing the specific facts and circumstances surrounding his discharge processing is not in the record.  However, there is a properly constituted separation document (DD Form 214) on file that contains the authority and reason for discharge.  This document was authenticated by the applicant with his signature.  It confirms that on 1 April 1981 he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  It also shows that his service was characterized as UOTHC and that he had completed only 1 year, 3 months, and 21 days of active military service. 

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statue of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides for members, who have committed an offense or offenses that authorize a punitive discharge, to submit a request for discharge in lieu of trial by court-martial.  The request may be submitted at any time after court-martial charges are preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate for members separating under these provisions. 

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 record is void of facts and circumstances concerning events that led to a discharge from the Army.  The Board notes that his record contains a properly constituted DD Form 214, which was authenticated by the applicant with his signature and the Board presumes government regularity in the discharge process.  

2.  The separation document confirms that the applicant was discharged in lieu of trial by court-martial.  Procedurally, this would have required him to consult with legal counsel after being charged with the commission of an offense(s) punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  In addition, he would have had to voluntarily request separation after admitting guilt to the stipulated offense(s) under the UCMJ.

3.  Lacking independent evidence that supports the applicant’s claim that he was pressured into requesting discharge, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the Board finds the applicant’s good service during the initial portion of the enlistment was not sufficiently meritorious to warrant an upgrade of his discharge and it concludes that the characterization of his service is commensurate with his overall record of 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

__RVO___  __ENA__  __TEO__    DENY APPLICATION

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

INDEX

CASE ID	AR2001058227	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/09/27	
TYPE OF DISCHARGE	(UOTHC,)	
DATE OF DISCHARGE	19810401	
DISCHARGE AUTHORITY	AR 635-200, chapter 10.  .  .  .  .  	
DISCHARGE REASON	Separation in lieu of trial 	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 23.03 	23.00	
2.		
3.		
4.		
5.		
6.