MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 July 2003                   
	DOCKET NUMBER:    AR2003088334

	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. Fred N. Eichorn		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Eric N. Anderson		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:  Reconsideration of his earlier appeal to correct his  military records by upgrading his under other than honorable conditions (UOTHC) discharge. 

APPLICANT STATES:  In effect, that severe family problems he was experiencing at the time impacted his ability to serve, and was the reason he departed his unit absent without leave (AWOL).  He also indicates that his discharge was unjust because upon his return to military control he never received proper counseling or all the information necessary to make an informed decision.  He claims that he is now serving honorably in the United States Navy Reserve (USNR).  He also states that he has taken and passed the examination to become a New York City Police Officer, but his discharge is preventing him from obtaining this position.  The applicant’s full argument is included in his enclosed three page letter to the Board.  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2002072971) on 5 September 2002.  

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition during his tenure on active duty.  However, it does reveal a disciplinary history that includes his being AWOL on 8 June 1982, and his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 15 June 1982, for disobeying a lawful order. 

A court-martial charge was preferred against the applicant for his period of AWOL from 5 September 1982 through 24 October 1982.  On 27 October 1982, after consulting with legal counsel and being advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, and of the possible effects of an UOTHC discharge, the applicant voluntarily requested discharge for the good of the service, under the provisions of chapter 10, Army Regulation 635-200, in lieu of court-martial.  

On 4 November 1982, the separtion authority approved the applicant’s discharge request and directed that he be discharged UOTHC and that he be reduced to the lowest enlisted grade.  On 18 November 1982, the applicant was discharged accordingly.  

The separation document (DD Form 214) issued to the applicant on 
18 November 1982, confirms that he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of court-martial.  It also shows that at the time of his discharge, he had completed a total of 11 months and 2 days of creditable active military service and he had accrued 49 days of AWOL.  

On 5 September 2002, this Board considered and denied the applicant’s original request for an upgrade to this discharge.  It found that the family problems experienced by the applicant were not sufficiently mitigating to support the requested relief.  It further determined that the applicant had voluntarily elected to request an administrative discharge rather than risk the consequences of a court-martial, and that his discharge was processed in accordance with the applicable regulation.  

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 Board notes the applicant’s contention that his discharge should be upgraded because the family problems he experienced at the time seriously impaired his ability to serve, and because he wishes to pursue a position in law enforcement.  However, the Board finds these factors are not sufficiently mitigating to warrant the requested relief.  

2.  The Board also considered the applicant’s claim that he was never properly counseled on the seriousness of his discharge or given the information necessary to make an informed decision.  However, it finds insufficient evidence to support these assertions.  

3.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The Board notes that, after consulting with defense counsel and being advised of the consequences of an UOTHC discharge, the applicant voluntarily requested separation in lieu of trial by court-martial.  

4.  Lacking evidence to the contrary, 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 undistinguished record of service.  Thus, the Board concludes that a discharge upgrade is not warranted in this case.

5.  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.

6.  In the opinion of the Board, the overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7.  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

__MVT__  ___FE__  ___ENA__  DENY APPLICATION

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

INDEX

CASE ID	AR2003088334	
SUFFIX		
RECON	AR2002072971	
DATE BOARDED	2003/07/	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1982/11/18	
DISCHARGE AUTHORITY	 AR 635-200 C10	
DISCHARGE REASON	In lieu of court-martial 	
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.