MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 September 2002                  
	DOCKET NUMBER:   AR2002068927

	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	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. William D. Powers		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, he was young and did not understand the nature of his discharge characterization.  He also contends that he felt that he was being discriminated against.

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

The applicant entered active duty on 3 December 1972 at the age of 17.  He completed basic combat training and advanced individual training and was assigned to Hawaii for duty.

The applicant received nonjudicial punishment (NJP) seven times under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  Twice for being absent without leave (AWOL) (19 January 1977 through 28 January 1977 and 8 July 1977 through 12 July 1977), twice for failure to go to his appointed place of duty (14 October 1976 and 7 September 1977), and once each for disrespectful language toward a drill instructor (6 May 1976), disobeying a lawful order (3 May 1976), and unlawfully sticking a private (23 January 1976).

On 3 October 1977, court-martial charges were preferred for four specifications of being absent from his appointed place of duty, one specification of disrespective behavior toward a second lieutenant, and two specifications of communicating a threat, one to a sergeant and one to a first lieutenant.

On 19 October 1977, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulations 635-200, chapter 10.  He acknowledged that he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge.  He waived his right to make a statement on his own behalf and to counsel.  

On 4 November 1977, the discharge authority approved the request for discharge, dismissed the pending court-martial charges, directed that the applicant be reduced to grade of private (E-1), and directed that the applicant receive a Under Other Than Honorable Conditions Discharge Certificate.

On 9 November 1977, the applicant was separated under the provisions of Army Regulation 635-200, chapter 10.  He had served 1 year, 10 months and 25 days creditable service and had 15 days lost time.
The applicant requested that the Army Discharge Review Board (ADRB) review his characterization of service.  In a unanimous vote on 14 November 1983, the ADRB held that no relief was warranted.

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.

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 134, communicating threat.

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.  There is no evidence of record that the applicant was discriminated against or treated differently from any other soldier who committed similar offenses. 

2.  The fact that the applicant was young at the time he entered the service does not excuse the repeated offences that ultimately resulted in his discharge.

3.  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.

4.  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.  The character of the discharge is commensurate with his overall record and the offense for which he voluntarily requested discharge.

5.  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 the aforementioned requirement.

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___  __DPH__  _WDP___  DENY APPLICATION

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

INDEX
CASE ID	AR2002068927	
SUFFIX		
RECON		
DATE BOARDED	20020912	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.70	
2.	144.9301	
3.		
4.		
5.		
6.