MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 August 2002
	DOCKET NUMBER:   AR2002073176

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Margaret V. Thompson		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 to honorable.

APPLICANT STATES:  That the reason he was discharged was unfair and unjust.  The charges were dropped.  He chose to go to jail but the military police, not him, suggested that he get out of the Army.  He was a good soldier and wanted to stay in the Army and serve his country.  He was not given the right to counsel and was not allowed to choose for himself what he wanted.  He provides no supporting evidence.

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

He enlisted in the Regular Army on 1 March 1976.  He completed basic training and advanced individual training and was awarded military occupational specialty 82C (Field Artillery Surveyor).

On 2 June 1976, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave from 30 May to on or about 2 June 1976.  

On 11 September 1976, the applicant accepted NJP under Article 15, UCMJ for being absent without leave from 7 September to on or about 14 September 1976.

On 13 June 1977, the applicant was arrested by military authorities for larceny of private property.  In a sworn statement, the applicant stated that he removed a radio from another soldier’s cubicle.  He did not know to whom the radio belonged because he was new in the battery.  He took the radio down to a local pawnshop and pawned the radio.  He did not know why he took the radio.  When asked what he was doing in the other soldier’s cubicle, he stated that he was just walking down the hall and saw the radio so he decided to get it.  He later found out to whom the radio belonged but he made no attempt to give it back.  

On 21 June 1977, court-martial charges were preferred against the applicant charging him with larceny of private property of a value of about $40.00.  His commander recommended his trial by special court-martial with bad conduct discharge authority.  

On 19 July 1977, the applicant completed a separation physical and was found qualified for separation.

On 29 July 1977, the applicant underwent a mental status evaluation.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.  

On 7 July 1977, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted a statement in his own behalf wherein he requested he receive an honorable discharge because there was much prejudice where he came from and he knew he would not be able to get a good job without an honorable discharge. 

On 8 August 1977, the appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.

On 11 August 1977, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC.  He had completed 1 year, 5 months, and 1 day of creditable active service and had 10 days of lost time.

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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.  

The Manual for Courts-Martial United States, 2000 edition prescribes the maximum punishment for larceny of property other than military property of a value of $100.00 or less as a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

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, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  The evidence of record shows that he was advised by counsel prior to making this voluntary request.  There is no indication that the request was made under coercion or duress.  There is no evidence to show that the charges were dropped for any reason other than to allow him to administratively separate in lieu of trial by court-martial.  The evidence of record shows he had a prior record of misconduct.  The type of discharge given was and still is appropriate.  

3.  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

__RJW__  ___LE___  __MVT__  DENY APPLICATION

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

INDEX

CASE ID	AR200273176	
SUFFIX		
RECON		
DATE BOARDED	2002/08/08	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1977/08/11	
DISCHARGE AUTHORITY	AR 635-200, ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.