MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 August 2002
	DOCKET NUMBER:   AR2002067982

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Ms. Paula Mokulis		Member	
	Mr. Donald P. Hupman, Jr.		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 Certificate of Release or Discharge from Active Duty, DD Form 214, be corrected to show his rank as Private First Class (PFC), E-3 and to add the Federal Hazardous Materials course.

APPLICANT STATES:  The applicant makes no additional statement.  He provides his DD Form 214 and his Request and Authority for Leave, DA From 31, as supporting evidence.

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

He enlisted in the Army National Guard (ARNG) on 15 April 1998.  On                 9 November 1998, he requested enlistment in the Regular Army.  His request was approved on 8 December 1998.

A Report of Separation and Record of Service, NGB Form 22, shows the applicant was discharged from the ARNG on 8 December 1998 for the purpose of enlisting in any component of the Armed Forces.

On 5 January 1999, the applicant enlisted in the Regular Army.

Another NGB Form 22 shows the applicant was discharged from the ARNG on   4 April 1999 for the purpose of enlisting in any component of the Armed Forces.

The applicant’s Personnel Qualification Record, DA Form 2-1, shows he was advanced to PFC on 11 August 1999.  It shows that he was absent without leave (AWOL) from 5 December 2000 – 12 January 2001 (38 days).  (12 January 2001 appears to have been the date he returned to military control, not his last day of AWOL.)  His DA Form 2-1 does not show that he completed a Hazardous Materials course and there is no course completion certificate on his fiche.

On 18 January 2001, court-martial charges were preferred against the applicant charging him with being AWOL for the period 5 December 2000 to on or about   12 January 2001.  A Personnel Action form, DA Form 4187, shows the applicant returned to military control on 12 January 2001.

On 19 January 2001, after consulting with legal counsel, the applicant voluntarily 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 was advised of the effects of a discharge under other than honorable conditions (UOTHC) and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement in his own behalf.

The provided DA Form 31 shows the applicant was placed on excess leave pending discharge on 19 January 2001.  The DA Form 31 shows his rank as PFC.
On 16 October 2001, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

On 29 October 2001, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  He had completed 2 years, 9 months, and 25 days of creditable active service.  His DD Form 214, item 29, erroneously indicates that he had no 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 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.  A discharge UOTHC is normally considered appropriate.

Army Regulation 600-8-19 prescribes policies governing promotion and reduction of Army enlisted personnel.  In pertinent part, it states that when the separation authority determines that a soldier is to be discharged from the service with a discharge UOTHC, the soldier will be reduced to the lowest enlisted grade.  Further board action is not required for this reduction.

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 evidence of record shows the applicant was discharged with a discharge UOTHC.  Such a discharge required the applicant to be reduced to Private, E-1.

3.  There is no evidence of record and the applicant provides none to show he completed a Hazardous Materials course.

4.  It is noted that the applicant’s DD Form 214 erroneously indicates he had no lost time.  However, as the applicant does not request this correction it will not be made.

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

___LLS__  __PM___  __DPH__  DENY APPLICATION

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

INDEX

CASE ID	AR2002067982	
SUFFIX		
RECON		
DATE BOARDED	2002/08/06	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.00	
2.		
3.		
4.		
5.		
6.