MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         14 March 2002                            
	DOCKET NUMBER: AR2002066904

	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	
	Mrs. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Roger W. Able		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 discharge under other than honorable conditions (UOTHC) be upgraded.

APPLICANT STATES:  In effect, that he was young and was not making good decisions.  He knew many guys that smoked Marijuana and feels that he was unlucky to some extent, even though, he admits his guilt.  He states, that he has had his bad discharge for 23 years and wonder if this is not enough punishment for the infraction.  He liked the Army and at that time wanted to stay in the service.  He states, that he got married and had two children.  He was married for 19 years and his oldest child is now attending college and is doing well.  His other daughter is in high school and works part-time.  Even though he is now divorced from their mother, he keeps in contact with his girls.  He is now seeing another woman and they are planning to get married in the near future.  He has been encouraging her daughter to join the service.  He has worked full-time since leaving the service and is currently holding down two jobs to help provide for his two daughters.  He is also studying for his GED because he had to drop out of school to work and help provide for his seven brothers.  Finally he states, that he has enclosed three character references from local people who knows him.  He states, that he has tried to be a good citizen and think that the Army helped him in life even with his bad discharge.  He is now asking that the Board consider his request and realize that he is sorry for any past behavior and that his request for an upgrade be granted.  

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

On 14 January 1977, the applicant enlisted in the Regular Army for 3 years.  He completed the required training and was awarded military occupational specialty 11B10 (Infantryman).  The highest grade he achieved was pay grade E-2.

On 23 November 1977, the applicant was convicted by a summary court-martial of failure to repair and of being absent without leave (AWOL).  He was sentenced to a forfeiture of $200.00 pay, 20 days restriction and extra duty.      

Between February and August 1978, the applicant accepted three nonjudicial punishments under Article 15, Uniform Code of Military Justice, for being AWOL from 15 to 16 February 1978, for failure to repair and for the wrongful transfer of Marijuana.  His punishment included forfeitures, restrictions, extra duty and a reduction to pay grade E-1.   

On 25 September 1978, court-martial charges were preferred against the applicant of being AWOL from 12 to 22 September 1978, of failure to repair and of disobeying a lawful order. 

A medical examination found the applicant fit for retentions.  

On 19 October 1978, after consulting with legal counsel, the applicant voluntarily without any coercion requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  The applicant acknowledged that he understood the elements of the offenses charged.  The applicant waived further rehabilitation and was advised of the effects of a discharge under other than honorable conditions.  He acknowledged that he understood that he might be deprived of many or all Army and Veterans Administration benefits.  He was afforded the opportunity to submit statements in his behalf, but declined to do so.  

On the same day, the company commander recommended approval of the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10.  The commander’s decision was based on the applicant’s misconduct.  

On 25 October 1978, the Commanding General approved the applicant’s request for discharge and directed the issuance of a Discharge Certificate Under Other Than Honorable Conditions.  On 6 November 1978, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC.  He had completed 1 year, 9 months and 9 days of creditable active military service and 14 days of lost time. 

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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  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 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'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, duress or that his rights were violated in any way.

3.  Although the applicant has expressed regret for his action; and has submitted a number of documents in support of his application, this Board cannot disregard the applicant’s conduct while in the military.

4.  Therefore, 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___  __wtm___  __rwa___  DENY APPLICATION

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

INDEX

CASE ID	AR2002066904	
SUFFIX		
RECON		
DATE BOARDED	20020314	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19781106	
DISCHARGE AUTHORITY	AR635-200, chp10.  .  .  .  .  	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.