MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           10 October 2001    
	DOCKET NUMBER:   AR2001058616

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Charles Gainor		Member	
	Mr. Joe R. Schroeder		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 to a fully honorable discharge. 

APPLICANT STATES:  In effect, that his discharge did not reflect the fact that he was a group leader or that he saved lives on the grenade range; that he had the fourth highest final test score in training; that he was a good soldier and he is a good person.  He states that he was not drafted; he volunteered for the Army.  He believes the type of discharge that he received was too harsh and that his command abused its authority when they discharged him with a UOTHC discharge.  He believes that he was simply a black man in the wrong place at the wrong time.  In support of his request, he submits a copy of his DD Form 214 (Report of Separation from Active Duty), a copy of his birth certificate, a copy of a certificate of enrollment in an electronics technician's course, a copy of a certificate of recognition for attendance and participation in an air conditioning and refrigeration course, and a copy of a certificate for completing a masonry course.

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

That on 24 November 1975, he enlisted in the Regular Army for 3 years and training in military occupational specialty (MOS) 13B (Cannon Crewmember).  He completed basic and advanced individual training and on 26 March 1976, he was assigned to Fort Polk, Louisiana.

On 7 June 1976, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed on 21 May 1976.  On 
18 February 1977, NJP was imposed against him for being disrespectful in language and deportment towards a noncommissioned officer on 10 February 1977.  His punishments included forfeiture of pay, extra duty and restriction.  

On 21 March 1977, NJP was imposed against the applicant for wrongfully having in his possession one ounce, more or less, of marijuana.  His punishment included reduction from pay grade E-3 to pay grade E-2, and extra duty.

The applicant departed his unit in an absent without leave (AWOL) status from 
6-9 January 1977 and again from 4 May-19 June 1977.  There is no evidence that he was punished for these offenses.

On 11 August 1977, court-martial charges were preferred against the applicant for willfully disobeying a lawful order of a commissioned officer on 9 August 1977 and for wrongfully and unlawfully endeavoring to impede an investigation of other service members by absconding with the evidence (one bag of marijuana).

On 11 August 1977, the applicant consulted with legal counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  He was advised that he could receive a UOTHC discharge. He authenticated a statement with his own signature in which he acknowledged that he understood the ramifications and effects of receiving a UOTHC discharge.  The applicant indicated in a statement submitted in his own behalf that he entered the service with the intention of making it a career, but felt it was best for all concerned that he be allowed to resign in lieu of being tried by court-martial.

The applicant’s unit commander's recommendation is not a matter of record; however on 23 August 1977, the separation authority approved the applicant's separation with a UOTHC discharge.

On 24 August 1982, the Army Discharge Review Board denied the applicant’s request for an upgrade of 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.  Although an honorable or general discharge was authorized, a UOTHC discharge was 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 voluntarily requested discharge to avoid trial by court-martial and there is no evidence of any coercion during the discharge process.  Neither is there any evidence that indicates he was treated differently or unfairly because of his race.  He has provided no information that would indicate the contrary.   

3.  The Board took into consideration the applicant's achievements, to include his entire record of service, and was convinced that both the reason for discharge and the characterization of service were appropriate considering the facts surrounding his discharge.

4.  Further, the Board notes the applicant's post service accomplishments.  However, these accomplishments do not overcome his poor service record, to include his repeated misconduct offenses.

5.  The available records do not indicate that the applicant was a group leader, a high achiever, or that he saved any lives.  Even if true, this information, by regulation, would not be reflected on his DD Form 214.  

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

__LLS __  __CG  __  __JRS ___  DENY APPLICATION

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

						

INDEX

CASE ID	AR2001058616	
SUFFIX		
RECON		
DATE BOARDED	20011110	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR635-200, CHAPTER 10  	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.