MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 March 2003
	DOCKET NUMBER:   AR2003085037

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. William D. Powers		Member	
	Ms. Linda M. Barker		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:  In effect, that his under other than honorable conditions (UOTHC) discharge be upgraded.  

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

On 17 September 1998, he enlisted in the Regular Army for 3 years.  The record also confirms that the highest rank he attained while serving on active duty was private/E-2 (PV2), and that during his active duty tenure he earned no individual military awards or decorations.  In addition, his record documents no acts of valor, significant achievement, or service warranting special recognition. 

The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 6 December 1999, for his incapacitation for the proper performance of his duties due to the wrongful previous indulgence in intoxicating liquor or drugs.  The resultant punishment included a suspended reduction to private/E-1 (PV1).  

On 1 March 2000, the suspended reduction imposed by the 6 December 1999 NJP was vacated due to the applicant’s failure to go to his prescribed place of duty on 8 February 2000.  

On 10 May 2000, the applicant departed absent without leave (AWOL) from his unit at Fort Campbell, Kentucky and he remained away until returning to military control on 22 June 2000.  Upon his return, the applicant was charged with four specifications of AWOL and failure to report, two specifications of the wrongful use of valium and ecstasy, one specification of disrespect to a noncommissioned officer (NCO), two specifications of breaking restriction and possession of alcohol while under the legal drinking age.  

On 1 July 2000, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to this counseling, the applicant voluntarily requested discharge, for the good of the service, in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged his understanding that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

The appropriate authority approved the applicant’s request for discharge in lieu of trial by court-martial, and directed that he receive an UOTHC discharge.  On 
31 August 2000, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant on the date of his separation confirms that he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  This document also confirms that at the time of his discharge the applicant had completed 1 year, 7 months, and 28 days of creditable active military service, and that he had accrued 75 days of time lost due to AWOL and confinement.  

On 29 January 2003, the Army Discharge Review Board found the applicant’s discharge was both proper and equitable, and it denied the applicant’s request for an upgrade.

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.

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.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The Board notes that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  

2.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process and that the character of his discharge accurately reflects his overall record of service.  Therefore, the Board concludes that the requested relief is not warranted. 

3.  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.

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

__RJW__  __WDP _  __ LMB__  DENY APPLICATION 

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

INDEX

CASE ID	AR2003085037	
SUFFIX		
RECON		
DATE BOARDED	2003/03/04	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	2000/08/31	
DISCHARGE AUTHORITY	AR635-200 C10	
DISCHARGE REASON	In Lieu of Court Martial 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  360	144.0000	
2.		
3.		
4.		
5.		
6.