MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            3 October 2002                  
	DOCKET NUMBER:   AR2002071160

	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 "Section 10" be removed from his DD Form 214 (Report of Separation from Active Duty) and that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.

APPLICANT STATES:  That he was told that he could reenlist once he settled his problems.  He adds that his sergeant provoked him with racial slurs.

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

Prior to the period of service under review, the applicant served honorably in the United States Naval Reserve from 10 May 1975-22 June 1976.  During that period of service, he spent 5 months on active duty.

On 23 June 1976, the applicant enlisted in the Delayed Entry Program (DEP).  On 4 August 1976, he was discharged from the DEP and he enlisted in the Regular Army for 4 years and training in military occupational specialty (MOS) 95B (Military Police).  Following completion of all required military training, he was awarded MOS 95B and assigned to Korea on 25 November 1976.  

On 16 June 1977, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for violating a lawful general regulation by purchasing 32 ounces of mayonnaise in excess of the monthly prescribed limit in April 1977.  His punishment included forfeiture of $99.00 pay per month for 1 month and 7 days of extra duty.

On 9 November 1977, NJP was imposed against the applicant for being derelict in the performance of his duties on 24 October 1977 in that he willfully let another individual operate a military vehicle without a driver's license when the vehicle was dispatched to him [applicant].  His punishment included forfeiture of $75.00 pay per month for 1 month and 2 days of extra duty.  

On 26 December 1977, the applicant was reassigned to Fort Devens, Massachusetts.  On 11 July 1978, he received a mental status evaluation and a medical examination that determined he was qualified for separation.

The applicant's records no longer contain all of the facts and circumstances surrounding the discharge process.  An Army Discharge Review Board (ADRB) Case Report, dated 29 June 1979, shows that the applicant was AWOL (absent without leave) on three separate occasions:  on 26 March 1978; from 1-23 April 1978; and from 25 April-6 July 1978.  Court-martial charges were preferred against him and the applicant requested separation under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  His request for separation was approved on 18 July 1978. 

The applicant's records also contain a properly constituted DD Form 214 that was prepared at the time of separation and signed by the applicant.  This document shows that, on 24 July 1978, 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 2 years, 1 month, and 15 days of total active service (5 months and 1 day of this service was prior active service).  He also had 97 days of lost time due to being AWOL.  

On 29 June 1979, the ADRB 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 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, due to conduct triable by court-martial.  Although the facts and circumstances surrounding the discharge process are missing, under chapter 10 the applicant 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 in writing 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.  The Board found no evidence of arbitrary or capricious actions by anyone in the applicant's chain of command.  Neither is there any evidence of discrimination. 

4.  The US Army does not have, nor has it ever had, a policy that provides for automatic reenlistment after an individual has been separated with a UOTHC discharge for conduct triable by court-martial.  Each case is decided on its own merits when a request for an upgrade is made.  Changes may be warranted only when the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

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

__inw___  __wtm___  __cg____  DENY APPLICATION

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

INDEX

CASE ID	AR2002071160	
SUFFIX		
RECON		
DATE BOARDED	20021003	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19780724	
DISCHARGE AUTHORITY	AR635-200, Ch 10	
DISCHARGE REASON	A71.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7100	
2.		
3.		
4.		
5.		
6.