MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:           30 September 2003
		DOCKET NUMBER:  AR2003086708

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Melvin H. Meyer		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 under other than honorable conditions discharge be changed to a general under honorable conditions discharge.

APPLICANT STATES:  That he was a good soldier and did not have problems.  He also states that he was absent without leave (AWOL) because his wife was about to give birth to his first child and his request for leave was not granted.  He was 21 years old and took his family as his priority over the service.  He is now 46 years old and hopes for a new beginning with his life and family.  He claims that he has not been in trouble since then.  In support of his application, he submitted a copy of his DD Form 214 (Report of Separation from Active Duty) and three letters of support.

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

The applicant served in the U.S. Army Reserve prior to his enlistment in the Regular Army on 1 December 1975.  He was assigned to the 1st Battalion, 21st Infantry, 25th Infantry Division in Hawaii in military occupational specialty 11C (Infantry Indirect Fire Crewman).

On 27 January 1976 and 8 June 1976, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful command from a superior commissioned officer; for being absent from his place of duty on 23 January 1976 from 1715 hours to on or about 2100 hours; for failing to go to his appointed place of duty on two occasions; and for signing a false official document.

The applicant was advanced to private first class on 1 March 1977.

The applicant was punished under Article 15, UCMJ on three occasions between 23 September 1977 and 23 February 1978 for disobeying a lawful order from a superior noncommissioned officer (NCO) and for failing to go to his appointed place of duty.

Records show the applicant was AWOL from 21 March 1978 to 17 September 1978. 

The facts and circumstances pertaining to the applicant’s discharge proceedings are not present in his records.  However, his DD Form 214 indicates that he was discharged on 20 October 1978 under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial and was issued an under other than honorable conditions discharge.  He had completed 2 years, 4 months, and 19 days of creditable service with 181 days of lost time due to AWOL.

There is no indication that the applicant applied to the Army Discharge Review Board within its 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 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 Board notes that the discharge processing papers are not in the applicant’s records.  However, 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.

3.  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, is presumed to have been administratively correct and in conformance with applicable regulations with no indication that the request was made under coercion or duress.

4.  The Board noted the applicant's contentions; however, the evidence of record shows he was punished under Article 15, UCMJ on five occasions and was AWOL for 181 days during his military career.

5.  The applicant has not presented any evidence that the discharge process was flawed, in error or unjust.  Therefore, there is insufficient evidence upon which to base an upgrade of his under other than honorable conditions discharge to a general under honorable conditions discharge.

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

RJW_____  MVT_____  MHM_____  DENY APPLICATION

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

INDEX

CASE ID	AR2003086708	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030930	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	144.0000	
2.		
3.		
4.		
5.		
6.