MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 August 2002                  
	DOCKET NUMBER:   AR2002068479

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Jose A. Martinez		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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.  

APPLICANT STATES:  In effect, that he did not admit guilt to any charges preferred against him because he was innocent; however, he did not want a trial by court-martial because he did not want to risk being convicted and sentenced to confinement.  He states that prior to arriving at Fort Dix, New Jersey, he believed that he had been approved for separation with an honorable discharge because his company commander told him that he would receive an honorable discharge if he were separated as a drug and alcohol abuse rehabilitation failure. Therefore, he signed the paperwork.  However, his commander realized that there was an additional offense and told him that he wanted him to serve time.  He states that he left more than $10,000 worth of personal property with his unit because he had to leave Germany before he could ship it home.  His unit never shipped his personal property and he has never been paid for it.  He also states that he has earned a Bachelors Degree in Christian Education and a Masters Degree in Divinity since being separated.  He loves his country and an upgrade of his discharge would make it possible for him to serve in the Army Reserve or the National Guard.

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

Prior to the period of service under review, the applicant served honorably in the Regular Army (RA) from 20 August 1980-24 November 1985.  On 25 November 1985, he reenlisted in the RA for 4 years in pay grade E-5, for the overseas area reenlistment option (Europe) and a selective reenlistment bonus of 1A for military occupational specialty (MOS) 31M.

On 1 April 1986, the applicant was assigned to Germany.  Although the official record of punishment is not contained in his official military personnel file, evidence available indicates that, on 15 March 1988, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for unspecified reason(s).  His punishment included reduction from sergeant to pay grade E-4, forfeiture of $519.00 pay for 1 month and 45 days' extra duty.

The applicant's records do not contain all of the facts and circumstances surrounding the discharge process.  However, his records do contain a properly constituted DD Form 214 that was prepared at the time of his separation.  The DD Form 214 shows that, on 25 April 1989, he was separated with a UOTHC discharge for the good of the service, under the provisions of chapter 10, Army Regulation 635-200.  He had completed a total of 8 years, 8 months and 6 days of active military service and he had no recorded lost time. 

On 19 July 2000, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

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.  Although, an honorable or general discharge was authorized, a UOTHC discharge was then 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 available records show that the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  Although, the facts and circumstances surrounding the discharge process are missing, he would have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  He would have consulted with defense counsel and signed a statement indicating that he had been informed that he could receive a UOTHC discharge and the ramifications of receiving such a discharge.  He would have voluntarily requested discharge to avoid trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ.  The Board presumes administrative regularity and the applicant has provided no information that would indicate the contrary.   

3.  Further, the Board found no evidence of arbitrary or capricious actions by the command.

4.  The Board found no evidence to indicate that the applicant was a substance abuser or that he was ever enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  Even if so, he was aware of the consequences of any action that would have demonstrated any inability or refusal to successfully complete such a program.

5.  Entitlement to pay for personal property that may have been lost is not a matter under the purview of this Board, but rests with the unit in which the applicant left the property.  

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

__jns___  __inw___  __jam___  DENY APPLICATION

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

INDEX

CASE ID	AR2002068479	
SUFFIX		
RECON		
DATE BOARDED	20020815	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19890425	
DISCHARGE AUTHORITY	AR635-200, Ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.