MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             19 April 2000
	DOCKET NUMBER:    AR1999030844

	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.

	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Van B. Cunningham		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 discharge under other than honorable conditions be upgraded to a general discharge in order to receive
VA benefits.

APPLICANT STATES:  In effect, that he is not claiming any injustices and that he performed his job honorably.  He also states that his discharge should be upgraded in order to receive VA benefits and that his discharge was not service related.

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

He enlisted on 14 November 1978 as a cannon fire direction specialist.

Between August 1980 and August 1981, the applicant received two nonjudicial punishments (NJP) for failure to be at his appointed place of duty and for drunk and disorderly.  His punishment consisted of a reduction to pay grade E-2, a forfeiture of pay, restriction, extra duty and 7 days confinement. 

Charges were preferred against the applicant on 15 October 1981 for failure to obey a lawful order from a commissioned officer, for rape and for assault.

On 23 October 1981, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provision of AR 635-200, chapter 10.  In doing so he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the VA if a discharge under other than honorable conditions were issued.  He also elected not to submit a statement in his own behalf.

On 28 October 1981, the separation authority approved the recommendation for discharge and directed that he be furnished an Other Than Honorable Discharge Certificate.  The applicant was discharged on 13 November 1981.
He had a total of 2 years, 2 months and 24 days of creditable service and had a total of 27 days of lost time due to confinement.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge with its 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for 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 the charges have been preferred and must include the individual’s admission of guilt.  Although an honorable or general is authorized, 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 Board notes the applicant’s contentions that his discharge should be upgraded to a general discharge in order to receive VA benefits.  While the Board is empathetic, it does not upgrade discharges for the purpose of obtaining eligibility for benefits.

2.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and VA benefits.

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, was administratively correct and in conformance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  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 the aforementioned requirement.

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:

JPH_____  EJA____  VBC ____  GRANT

________  _______  _________  GRANT FORMAL HEARING
 
________  ________  ________  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030844	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000419	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19811113	
DISCHARGE AUTHORITY	AR 635-200 C, 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.		
3.		
4.		
5.		
6.