MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 December 2001                  
	DOCKET NUMBER:    AR2001062094

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Lester Echols		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 records be corrected to show he was honorably discharged.

APPLICANT STATES: He alleges the Department of Veterans Affairs upgraded his discharge by issuing him a certificate for a guaranteed loan, but that his DD Form 214 (Certificate of Release or Discharge from Active Duty) was not corrected.  He indicates that his original DD Form 214 was not in error but that the VA upgraded it in 1996 or 1997.

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

The Board considered the applicant’s request on 4 December 2001 and, although they voted to deny relief, the board, by unanimous vote, determined that the applicant’s failure to file within the statutory time limits should be excused.  Hence the applicant’s case has been reconstituted to excuse his failure to timely file. 

On 22 January 1982, after serving 5 years, 11 months and 2 days of prior honorable active service, the applicant reenlisted in the Army, pay grade E-4, in his military occupational specialty of 95C (Correctional Specialist).

On 11 May 1983, the applicant was barred from reenlistment based on his self-admittance of use of marijuana and for his failure of a drug test.

On 17 May 1983, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for the wrongful possession and use of marijuana on or about 5 April 1983.  His punishment was a reduction to pay grade E-2.  The applicant did not appeal the punishment.

On 23 June 1983, the applicant accepted NJP for the wrongful possession and use of marijuana on or about 17 May 1983.  His punishment included a reduction to pay grade E-1, restriction and extra duty.  The applicant did not appeal the punishment.

The applicant requested a discharge for the good of the service, in lieu of trial by court-martial, under Army Regulation 635-200, chapter 10 on 25 August 1983.

On 13 September 1983, the appropriate separation authority approved the applicant’s request and directed he receive a characterization of service of under other than honorable conditions (UOTHC).

On 16 September 1983, the applicant was discharged UOTHC, in pay grade E-1, under the above cited regulation.  His DD Form 214 shows he had 7 years,         6 months and 27 days of creditable service.  

There is no evidence of a later upgrade of his discharge to honorable for the period under review.  The VA under its own rules has the authority to grant benefits based on periods of honorable service or to deny benefits for a lesser quality of service.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge. 

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

This Board operates under the standard of presumption of regularity in governmental affairs.  The standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is nothing in the records or in the evidence submitted by the applicant that overcomes this presumption.

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 chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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

_jns____  _le_____  _tbr____       DENY APPLICATION

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

INDEX

CASE ID	AR2001062094	
SUFFIX		
RECON		
DATE BOARDED	20011220	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.000	
2.		
3.		
4.		
5.		
6.