MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 	       

	BOARD DATE:           2 October 2001
	DOCKET NUMBER:   AR2001059237

	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:

	Ms. Margaret K. Patterson		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Richard T. Dunbar		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 was put in jail while he was sick and then was discharged from the Army and would now like a GD.  

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

On 20 September 1974, he entered the Army for 3 years.  He successfully completed basic combat training, advanced individual training, and was subsequently assigned to Fort Sill, Oklahoma.

While assigned to Fort Sill, he went absent without leave (AWOL) on the following three occasions: 22 June to 9 July 1976; 23 July to 31 August 1976; and 9 to 10 September 1976.

On 13 September 1976, a court-martial charge was preferred against the applicant for his three periods of AWOL.  After consulting with legal counsel and being advised of the basis of the contemplated trial by court-martial, he voluntarily submitted a request to be discharged for the good of the service/in lieu of trial by court-martial.

On 5 November 1976, the appropriate authority approved the applicant’s request for discharge, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by court-martial and directed that he receive an UOTHC discharge.  At the time, he had completed a total of 1 year, 
11 months, and 6 days of creditable active military service and had accrued 
71 days of time lost due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for an 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 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 court-martial 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 record confirms that the applicant was discharged in lieu of trial by 
court-martial.  Procedurally, this required him to consult with legal counsel after being charged with the commission of offenses 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 offenses under the UCMJ.

2.  Lacking independent evidence to the contrary, 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 that the type of discharge directed and the reasons therefor were appropriate considering all the facts of the case and his overall record of service.

3.  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.

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

__MKP___  __KAK__  __RTD__  DENY APPLICATION

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

INDEX

CASE ID	AR20010593227	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/10/02	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19761105	
DISCHARGE AUTHORITY	AR 635-200.  .  .  .  .  	
DISCHARGE REASON	For the Good of the Service	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	71.00	
2.		
3.		
4.		
5.		
6.