MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           27 August 2002                  
	DOCKET NUMBER:   AR2002067887

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas Lanyi		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records

	Exhibit B - Military Personnel Records (including advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

APPLICANT REQUESTS:  That his under other than honorable conditions discharge (UOTHC) be upgraded to general or honorable.

APPLICANT STATES:  In effect, that his discharge was improperly issued because the discharge authority did not consider his Army Achievement Medal in determining his character of service.  He contends that because his Army Achievement Medal was not listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty) it shows that it and his other awards were not taken into consideration in the characterization of his service.  He states that the Army did not follow its own regulations in determining the character of his service and that this constitutes an injustice warranting relief.  He cites several Army Discharge Review Board (ADRB) and Army Board for Correction of Military Records cases, which he contends resulted in favorable actions based on the receipt of awards and decorations.  He states that the Army must follow its own regulations because an action in violation of the regulations is illegal and void.  

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

The applicant entered active duty on 2 April 1992.  He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman now known as Mechanized Infantryman). 

On 17 December 1992, the applicant was awarded the Army Achievement Medal for meritorious service for his performance and initiative during war games he participated in during the period from 23 November 1992 through 14 December 1992. 

Although the discharge packet is not of record, the available evidence shows that he was absent without leave (AWOL) from 23 March 1993 through 25 August 1993 (156 days).  Upon his return to military control he apparently voluntarily requested to be discharged under the provisions of the Chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  He was placed on excess leave pending completion of his discharge action.  

The applicant's DD Form 214 shows that he was discharged under other than honorable conditions on 10 February 1994.  He had 1 year, 5 months, and 6 days of creditable service and 156 days lost due to AWOL.  

The applicant's case was reviewed by ADRB on 25 July 2001.  That board made note of the applicant's receipt of the Army Achievement Medal and the Army Service Ribbon and held that these awards did not outweigh the seriousness of his offense.  They voted unanimously to deny relief.

Army Regulation 635-200, sets forth the purpose and policies for enlisted personnel separations.  Chapter 3, as in effect at that time, outlines the criteria for characterization of service as follows:

1.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

2.  Paragraph 3-7a(1) in pertinent part states:  "A soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Art 15."  "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service.”  

3.  Paragraph 3-7b state that a general discharge (GD) is a separation under honorable conditions issued to a soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  

4.  Paragraph 3-7c states that an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a soldier.  

5.  Paragraph 3-7c(7) specifically addresses issuance of an UOTHC characterization for discharges issued under the provisions of chapter 10 of that regulation.  

Chapter 10 of the 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A dishonorable discharge is authorized for periods of AWOL in excess of 30 days.

Department of Defense Directive 1332.28 provides the policy and guidance for discharge review.  It states, in pertinent part, “The standards of review and the underlying factors that aid in determining whether the standards are met shall be historically consistent with criteria for determining honorable service.  No factors 

shall be established that require automatic change or denial in [a] discharge.  Neither a DRB [Discharge Review Boards] or a Secretary of the Military department concerned shall be bound by any methodology of weighting of the factors in reaching a determination.”  Further, it provides that when it is determined that the rights of an individual were prejudiced by an error of fact, law, procedure or discretion such error will be considered material if there is substantial doubt that the discharge would have remained the same if the error had not occurred.

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.  While the Board attempts to be consistent in its decisions, no prior Board decision is considered as a precedent for future cases.  Each case is decided on its own merits.  A change of a discharge may be warranted if the Board determines that the characterization of service or the reason for discharge was in error and/or unjust.  

2.  The applicant has provided no evidence that the discharge authority failed to consider any aspect of his service.  Since the DD Form 214 would not have been prepared until after his discharge was directed, the fact that his Army Achievement Medal is not listed on it is irrelevant.

3.  Even if the discharge authority had failed to consider the applicant's Army Achievement Medal, in the opinion of the Board, this is not a material error because there is no substantial doubt that the discharge would not have remained the same even if that error had accrued.  

4.  The Board has reviewed the applicant's total period of service.  It notes the applicant's awards, decorations and commendations; however, it does not find that these factors are so meritorious as to outweigh the seriousness of his extended period of AWOL.

5.  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 Board finds that his service is appropriately characterized by his offense.

6.  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

__INW __  __AAO__  ___TL ___  DENY APPLICATION

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

INDEX
CASE ID	AR2002067887	
SUFFIX		
RECON		
DATE BOARDED	20020827	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	144.9201	
2.	144.9203	
3.		
4.		
5.		
6.