MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 October 2002                   
	DOCKET NUMBER:   AR2002070911

	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:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Charles Gainor		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 and that the narrative reason for separation be changed to "for the convenience of the government."

APPLICANT STATES:  That his ability to serve was impaired by his deprived background, his low aptitude scores, his level of education, and by his use of drugs and alcohol.  In support of his request, he submits a diploma that shows he completed the course work and received his High School Diploma in May 2001, and a letter from the Veterans Service Office Southern Desert Correctional Center, Indian Springs, Nevada.  He also submits a college transcript, several certificates for outstanding achievement and completion of substance abuse programs, and a letter recognizing his participation in the Adult Education Program at Southern Nevada Correctional Center.

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

He was born on 19 September 1959.  Prior to his enlistment, the applicant was convicted in civil court of trespassing, removing or breaking into a stolen vehicle, possession of a controlled substance, and reckless driving.  On 22 November 1978, a moral waiver was approved and the applicant was permitted to enter the Delayed Entry Program (DEP).

The applicant was administered the Armed Forces Qualification Test (AFQT).  The test revealed that he had a GT (General Technical) score of 99.  The GT score can be equated to levels of intelligence in terms of various standardized tests; a GT score of 99 placed the applicant in the normal range (90-110) on the Stanford-Binet Intelligence Quotient test.

On 9 January 1979, at 19 years of age, the applicant enlisted in the Regular Army for 3 years.  Following completion of all required military training, he was assigned to a unit in Germany, with duty as a Motor Transport Operator, military occupational specialty (MOS) 64C.

Available evidence indicates that during a random drug screening, the applicant tested positive for a substance (not further identified in the record).  On 16 July 1979, he was command-referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  He remained in the program through 30 November 1979.  There is no evidence that he completed the program; however, after being in the program for approximately 4 months and serving in Germany for a little more than 6 months, he returned to Fort Dix, New Jersey, for out-processing on 3 November 1980.

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 separation and signed by the applicant.  The DD Form 214 shows that, on 5 November 1980, he was separated with a UOTHC discharge, due to conduct triable by court-martial, under the provisions of chapter 10, Army Regulation 635-200.  He had completed a total of 1 year, 9 months and 27 days of active military service and he had no recorded lost time. 

There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge under that board's 15-year statute of limitations.  

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 an administrative discharge 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, with an administrative discharge due to conduct triable by court-martial.  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 of his characterization of service nor his narrative reason for separation.  

3.  There is no evidence, nor has the applicant presented any, to suggest that his separation was the result of a deprived background.  Likewise, the applicant's separation cannot be attributed to his educational ability, or lack thereof.  The applicant's test scores upon enlistment indicated that he was of normal intelligence.  Furthermore, he successfully completed all required training courses and was awarded an MOS.

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

__inw___  __wtm___  __cg____  DENY APPLICATION

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

INDEX

CASE ID	AR2002070911	
SUFFIX		
RECON		
DATE BOARDED	20021003	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19801105	
DISCHARGE AUTHORITY	AR635-200, Ch 10	
DISCHARGE REASON	A01.43	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.0143	
2.		
3.		
4.		
5.		
6.