MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:          25 July 2000
	DOCKET NUMBER:  AR1999030846

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern		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 (UOTHC) discharge be upgraded to an honorable discharge. 

APPLICANT STATES:  In effect, that he has joined a local church and he is enrolled in a substance abuse program.  Upon completion of the substance abuse program, he hopes to re-enter the workforce as a productive citizen.  He also believes that an upgrade of his discharge may help him to qualify for medical assistance.  He submits two statements written in his own behalf in support of his request.

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

That on 22 August 1979, he enlisted in the Regular Army for a period of 3 years and training in military occupational specialty (MOS) 76V (Storage Specialist).  He completed basic and advanced individual training and on 29 November 1979, he was assigned to Fort Polk, Louisiana.

On 14 April 1981, he was convicted by a special court-martial of wrongfully having in his possession 52 grams, more or less of marihuana on 4 March 1981, with the intent to distribute.  He was sentenced to reduction from pay grade E-4 to pay grade E-1, confinement at hard labor for 5 months and forfeiture of $100.00 pay per month for 
5 months.  He served in military confinement at Folk Polk from 14-27 April 1981.  On 
28 April 1981, he was transferred to the US Army Retraining Brigade (USARB), Fort Riley, Kansas.  

On 30 April 1981, the applicant’s sentence was modified.  Both the unexecuted portion of his sentence to confinement at hard labor and the unexecuted portion of his sentence to forfeiture of $100.00 pay per month was suspended until 13 October 1981, unless sooner vacated.  On 18 June 1981, he was released from the USARB and was assigned to Fort Jackson, South Carolina.

On 27 May 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military (UCMJ) for unlawfully striking another soldier (his wife) on the face with a combination of both his hand and his fist.  His punishment included reduction from pay grade E-3 to pay grade E-2 (suspended for 
6 months), forfeiture of $144.00 pay and 14 days extra duty.  On an unknown date the suspended portion of his 27 May 1982, NJP was vacated and he was reduced to pay grade E-2, apparently as a result of further misconduct.

On 24 August 1982, he accepted a second NJP for unlawfully striking his spouse on the face with his fist.  His punishment included reduction from pay grade E-2 to pay grade E-1, forfeiture of $128.00 pay per month for 2 months and 45 days restriction and extra duty.

On 30 August 1982, a bar to reenlistment was initiated against the applicant.  The applicant’s commander cited his previous court-martial conviction and his NJP’s as the reason.  On 7 September 1982, the bar to reenlistment was approved 

On 13 September 1982, court-martial charges were preferred against him for stealing a chemical protective suit of a value of about $37.20, and for selling the chemical protective suit, the property of the US Government, without proper authority on 2 September 1982.

On 14 September 1982, the applicant consulted with legal counsel and requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.  He was advised that the offense for which he was charged could lead to a UOTHC discharge.  He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UOTHC discharge.  He did not submit a statement in his own behalf.

On 16 September 1982, a mental status evaluation cleared him for separation from the service.  

On 20 September 1982, the applicant’s unit commander recommended that his request be approved with a UOTHC discharge.  On 21 September 1982, the battalion commander recommended separation with a UOTHC discharge. 

On 23 September 1982, a physical examination cleared the applicant for separation from the service.  On the very same day competent authority approved his request.

On 4 October 1982, he was separated with a UOTHC discharge by reason of an administrative discharge for conduct triable by court-martial, under the provisions of chapter 10, Army Regulation 635-200.  He had completed 2 years, 11 months, and 
8 days of active military service and he had 65 days lost time due to being in confinement. 

On 6 February 1986, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge. 

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 UOTHC discharge 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.  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 then in effect.  There is no indication that the request was made under coercion or duress.

3.  The Board took into consideration that the applicant completed a large portion of his service obligation, however, he continuously committed serious offenses and was repeatedly given a chance to rectify the situation. 

5.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  The applicant did not have any medically unfitting disability which required physical disability processing.  He has submitted no probative medical evidence to the contrary.

6.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

7.  The applicant’s post service efforts are commendable, but do not overcome his repeated misconduct and the seriousness of the offense for which he was discharged.

8.  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

__tsk___  __sk_____  __jhk____  DENY APPLICATION

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

INDEX

CASE ID	AR1999030846	
SUFFIX		
RECON		
DATE BOARDED	20000725	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19871004	
DISCHARGE AUTHORITY	AR635-200, CHAPTER 10  	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.