MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 August 2002                   
	DOCKET NUMBER:   AR2002068593

	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. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Lana E. McGlynn		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 a general discharge under honorable conditions. 

APPLICANT STATES:  That he believes the way the Army handled his situation was an injustice.  He believes that he should have been given a chance to change his behavior.  

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

On 26 January 1979, he enlisted in the Regular Army for 3 years and training in military occupational specialty (MOS) 11B (Infantryman).  Following completion of all required military training; he was awarded MOS 11B and assigned to Fort Riley, Kansas, on 16 May 1979.

On an unknown date, the applicant left his unit in an ordinary leave status through 18 January 1981.  When he did not return, his leave status changed from ordinary leave to absent without leave (AWOL) effective 19 January 1981.  He returned to his unit on 21 January 1981.  There is no evidence in the record to indicate that he was ever punished for this period of AWOL.

On 21 July 1981, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, was imposed against the applicant for being disrespectful in language towards a noncommissioned officer.  His punishment included reduction from pay grade E-4 to pay grade E-3 (suspended until 1 January 1983), forfeiture of $159.00 pay, and 14 days' extra duty.

On 10 December 1981, the applicant was convicted by a special court-martial of wrongfully possessing, transferring, and selling ten tablets, more or less, of LSD (lysergic acid diethylamide) on 16 July 1981.  The applicant was sentenced to reduction from pay grade E-4 to pay grade E-1, confinement at hard labor for 6 months, forfeiture of $367.00 pay per month for 6 months, and to be discharged from the service with a bad conduct discharge (BCD).  On 22 February 1982, the court-martial convening authority approved the sentence.

The applicant was in military confinement from 10 December 1981 until he was released on 12 April 1982.  Upon his release, he was placed on excess leave pending completion of the appellate review of conviction.

On 29 October 1982, the Army Court of Military Review ordered the findings of guilty and the sentence to be set aside in the applicant's case and authorized a rehearing.  The court-martial convening authority preferred new court-martial charges against the applicant.

On an unknown date, the applicant consulted with civilian legal counsel and requested discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of court-martial.  He was advised that he could receive a UOTHC discharge.  He authenticated a statement with his signature acknowledging that he understood the ramifications and effects of receiving a UOTHC discharge.  He did not submit a statement in his own behalf.  

On 31 January 1983, the approval authority approved the applicant's request for discharge under the provisions of chapter 10 and directed that he be separated with a UOTHC discharge in pay grade E-1.  

The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was separated in absentia on 23 February 1983 under the provisions of chapter 10, Army Regulation 635-200 with a UOTHC discharge for the good of the service-in lieu of court-martial.  He had completed 4 years and 26 days of active military service and he had 2 days of lost time due to being AWOL.

On 13 August 1984, 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 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, to avoid trial by court-martial and a possible discharge with a BCD was administratively correct and in conformance with applicable regulations. 

3.  The Board took into consideration the applicant's entire record of service and was convinced that both the reason for discharge and the characterization of service were appropriate considering the facts surrounding his discharge.

4.  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

__fne___  __tsk___  __lem___  DENY APPLICATION

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

INDEX

CASE ID	AR2002068593	
SUFFIX		
RECON		
DATE BOARDED	20020813	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19830223	
DISCHARGE AUTHORITY	AR635-200, Ch 10 	
DISCHARGE REASON	A01.33	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.0133	
2.		
3.		
4.		
5.		
6.