MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 December 2001
	DOCKET NUMBER:   AR2001060394

	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. JoAnn H. Langston		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Eric N. Andersen		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 an honorable discharge (HD).

APPLICANT STATES:  In effect, that his discharge was unjust and his prior honorable service, coupled with 16 years of outstanding service as a civilian employee with the Department of Defense are factors that support an upgrade to his discharge and should be considered by the Board during its review.  In support of his application, he submits a Department of Defense Civilian Leave and Earning Statement (DFAS Form 1).

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

On 31 August 1978, the applicant reenlisted for the enlistment under review.  At the time of this reenlistment, he had already completed 2 years, 8 months, and 
5 days of honorable active duty service.  He also had been trained and was serving in military occupational specialty (MOS) 76W (Petroleum Supply Specialist).

The record shows that the highest rank the applicant attained while serving on active duty was sergeant/E-5 and that he earned the Army Good Conduct Medal. However, it documents no acts of valor, significant achievement, or service warranting special recognition.  

A Personnel Action (DA Form 4187) on file, dated 17 February 1981, confirms that the applicant was declared absent without leave (AWOL) on 17 February 1981.  He remained away for 381 days until 4 March 1982, when he returned to military control. 

The applicant’s discharge packet, containing the specific facts and circumstances pertaining to his discharge processing, is missing from his military records.  However, there is a properly constituted separation document (DD Form 214) on file that contains the authority, reason, and characterization of the applicant’s discharge.  It confirms that he was administratively discharged on 2 July 1982, under the provisions of chapter 10, Army Regulation 635-200, by reason of conduct triable by court-martial.  

The separation document also verifies that the applicant’s service was characterized as UOTHC and that he had completed a total of 5 years, 5 months, and 21 days of creditable active military service, and that he had accrued a total of 383 days of lost time due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within 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 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 applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army.  However, the Board notes that his record does contain a properly constituted DD Form 214 that contains the authority and reason for his separation.  Therefore, the Board presumes government regularity in the discharge process.  

2.  The separation document confirms that the applicant was discharged for the good of the service/in lieu of trial by court-martial.  Procedurally, this would have required him to consult with legal counsel in order to be advised of the basis for the contemplated court-martial, the rights available to him, and the effects of a UOTHC discharge. In addition, he would have been required to admit guilt to the stipulated offense under the UCMJ and to voluntarily request, in writing, an administrative discharge in lieu of trial by court-martial.  

3.  As requested by the applicant, the Board considered his prior honorable service, and his post service conduct and employment.  However, it concludes that these factors alone do not mitigate the applicant’s misconduct sufficiently to warrant an upgrade to his discharge. 

4.  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.

5.  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

__JHL__   _ _MKP__  __ENA__  DENY APPLICATION

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

INDEX

CASE ID	AR2001060394	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/12/04	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.