MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 October 2001                  
	DOCKET NUMBER:   AR2001060388

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Donald P. Hupman		Member	
	Ms. Regan K. Smith		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 discharge be upgraded.

APPLICANT STATES:  In effect, that his discharge was a “breach of contract”.

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

The applicant entered active duty on 10 October 1979 for a period of three years.  He attended basic combat training at Fort Jackson, South Carolina, and was assigned to Fort Lee, Virginia, for advanced individual training (AIT).  

While in AIT, the applicant received nonjudicial punishment for being absent without leave (AWOL) from 2 February 1980 to 4 February 1980.

On 18 March 1980, he received nonjudicial punishment again for being derelict in the performance of his duties.

Records show the applicant was also AWOL from 1 May 1980 to 16 June 1980.

The facts and circumstances pertaining to the applicant’s discharge proceedings are not present in his records.  However, his DD Form 214 (Report of Transfer or Discharge) indicates that he was discharged on 11 August 1980, under the provisions of Army Regulation 635-200, chapter 10, administrative discharge conduct triable by court-martial and was issued an under other than honorable conditions discharge.  He had 7 months and 21 days of creditable service with 50 days of lost time.

Prior to his discharge, the applicant underwent a mental status evaluation and was cleared for separation.

There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) 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.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

2.  The Board considered the applicant’s contention that his discharge was a “breach of contract”; however, the applicant has not presented any evidence that the discharge process was flawed or that there were procedural errors which would tend to jeopardize his rights.  Therefore, there is no basis for upgrading his discharge.

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

RVO____  DPH_____  RKS_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001060388	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011016	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19800811	
DISCHARGE AUTHORITY	AR635-200,chapter 10	
DISCHARGE REASON	Administrative discharge conduct triable by a court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.		
3.		
4.		
5.		
6.