MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            22 August 2000
	DOCKET NUMBER:   AR1999033075

	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. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		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.

APPLICANT STATES:  In effect, that he was not in the frame of mind to fully understand the impact of his discharge at the time he received it and was unaware of the full effect it would have on his medical and other benefits.  He also contends that he just signed the documents given to him by counsel at the time and that he was advised that his discharge would be upgraded in 6 months. He finally indicates that he never received a copy of his discharge and just recently came into the possession of his separation documents, which he has being trying to obtain for years.  

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

He entered the Regular Army on 20 November 1979 for 3 years.  He successfully completed One Station Unit Training (OSUT) at Fort Bliss, Texas.  Upon completion of OSUT he was awarded military occupational specialty 16E 
(Hawk Missile Fire Control Specialist) and he was assigned to Korea for his first permanent duty station.

His record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does show an extensive disciplinary history which includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on two separate occasions; an imposed bar to reenlistment; and several incidents of AWOL related misconduct. 

On 5 December 1980, the applicant accepted NJP for violating a general regulation by disposing of duty free goods to a person not authorized duty free import privileges.  His punishment for this offense was a reduction in rank to private/E-2, a forfeiture of $225.00 per month for 2 months, and 30 days of restriction.  On 23 July 1982, he accepted another NJP for violating a lawful order and two specifications of failing to report to his prescribed place of duty.  His punishment for these offenses included a forfeiture of $100.00 and 14 days of extra duty.

On 22 September 1982, the applicant’s unit commander prepared a Department of the Army (DA) Form 4126-R (Bar to Reenlistment Certificate) recommending that a bar to reenlistment be imposed on the applicant.  The applicant’s failure to comply with military standards and his demonstrated poor attitude were cited as the reasons for the action.  In support of his action, the commander listed the applicant’s record of NJP and six counseling statements for the following infractions:  one for poor attitude; four for failure to repair; and one for disrespect to a superior.  The imposition of the bar to reenlistment was approved by the appropriate authority on 27 September 1982.
The applicant’s DA Form 2-1 (Personnel Qualification Record) documents, in block 21 (Time Lost), that he had been absent without leave (AWOL) on seven separate occasions as follows:  12 to 14 October 1982; 18 to 24 October 1982; 31 October to 29 November 1982; 30 November to 8 December 1982; and 14 to 19 December 1982.  In addition, it indicates that he was in military confinement from 28 December 1982 to 2 February 1983.  

On 22 December 1982, a Department of Defense (DD) Form 458 (Charge Sheet) was prepared which preferred a court-martial charge against the applicant for four specifications of AWOL.  On 27 December 1982, a second DD Form 458 was prepared which preferred two additional charges against the applicant.  The first for being AWOL and the second for breaking restriction. 

On 11 January 1983, the applicant consulted legal counsel and was advised of the basis for the contemplated court-martial action and of its effects, and he was informed of the maximum allowable punishment under the UCMJ for the offenses with which he was charged.  This resulted in the applicant electing to voluntarily request, in writing, separation for the good of the service, under the provisions of chapter 10, Army Regulation 635-200, in lieu of court-martial.  In his request the applicant admitted guilt to the stipulated offenses and acknowledged that his request for an administrative separation in lieu of trial by court-martial was voluntary and had been made free of coercion. 

In addition, the applicant acknowledged that he understood he could be discharged UOTHC and that he had been advised and understood the possible effect of an UOTHC discharge.  He further stated that he understood if he received a UOTHC discharge 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

On 27 January 1983, the appropriate authority approved the applicant’s request for discharge and directed that he receive an UOTHC discharge and that he be reduced to the lowest enlisted rank.  Accordingly, on 14 February 1983, the applicant was discharged after completing a total of 2 years, 11 months, and 
20 days of creditable active military service and after having accrued 95 days of time lost due to AWOL and military confinement.

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.  An UOTHC discharge is normally considered appropriate for members separated under these provisions. 

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 noted the contentions of the applicant that he was unaware of the full impact a UOTHC discharge would have on his benefits and that he believed his discharge would be upgraded in 6 months.  However, the Board finds no evidence of record or independent evidence submitted by the applicant that supports these claims. 

2.  The evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, and after consulting with defense counsel and being fully advised of the effect a UOTHC discharge would have on his benefits, he voluntarily requested separation from the Army in lieu of trial by court-martial.  

3.  In the opinion of the Board, the applicant’s voluntary request for discharge shows that he wished to avoid a trial by court-martial and the punitive discharge which may have resulted.  In addition, 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 character of his discharge is commensurate with his overall record of service.  Therefore, the Board concludes there is no basis for relief in this case. 

4.  The Board noted the applicant’s contention that he was advised that his discharge would be upgraded in 6 months, however, this claim lacks merit.  The Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Upon application from a member, the Board may determine that changes are warranted to the characterization of service or the reason for discharge if one or both were improper or inequitable.  The Board finds no impropriety or inequity in this case that would warrant an upgrade to the discharge under review. 

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 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___  ___kwl __  __elw ___  DENY APPLICATION

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

INDEX

CASE ID	AR1999033075	
SUFFIX		
RECON		
DATE BOARDED	2000/08/22	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1983/02/14	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	Good of the Service-In Lieu of Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.