MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 April 2000
	DOCKET NUMBER:   AR1999033522

	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. Joseph A. Adriance 		Analyst	

The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Roger Able		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:  In effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he believes that the punishment imposed on him was too harsh.  He indicates that he has tried for 15 years to get his discharge overturned or changed but in all that time he could never obtain his military records.  He is requesting that his record be reviewed, which will show that he was a good soldier.  The applicant has included the enclosed statement which provides an expanded argument in regard to his discharge action and in addition, addresses two other incidents which resulted in his accepting nonjudicial punishment (NJP).

COUNSEL CONTENDS:  In effect, although the records pertaining to the applicant’s discharge, which contain the specific facts and circumstances concerning the events which led to his separation are not on file, they still maintain, on behalf of the applicant, that the discharge was too harsh.  In addition, they comment that his military record of service is more deserving of an honorable type discharge.

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

On 3 November 1981, while assigned to Germany, the applicant reenlisted in the Regular Army for 6 years.  At the time of his reenlistment he had already completed 2 years, 6 months, and 10 days of active military service, held the rank of specialist/E-4, and was performing duties in military occupational specialty 19D (Calvary Scout).  

The record shows that the applicant was awarded the Army Good Conduct Medal on 22 April 1982 and that he was promoted to the rank of sergeant/E-5 on 7 October 1982.  There are no other documented acts of valor, significant achievement, or service warranting special recognition on file in the applicant’s service record.

His disciplinary history, prior to the incident which ultimately led to his discharge from the Army, included his acceptance of NJP, under the provisions of Article 
15 of the UCMJ, on two separate occasions.  

On 4 May 1983, he accepted NJP for failing to go to his prescribed place of duty while attending the Basic Noncommissioned Officer Course (BNCOC) at Fort Knox, Kentucky.  His punishment for this offense included a reduction to the rank of specialist/E-4 and 45 days of extra duty and restriction.  On 22 August 1983, the successor to the commander who imposed this punishment set-aside the original reduction action of the NJP.  He indicated the action was taken based on his determination that this was the most appropriate action.

On 20 January 1984, the applicant accepted NJP for being AWOL from his unit for 21 days, between 13 December 1983 and 4 January 1984.  His punishment for this offense included a reduction in rank to specialist/E-4; a forfeiture of $250.00 per month for 2 months; and 45 days of restriction and extra duty.

The separation packet containing the specific facts and circumstances surrounding the events which led to the applicant’s discharge is not on file.  The record does, however, contain a properly constituted DD Form 214 (Certificate of Release or Discharge From Active Duty), signed by the applicant, which documents the authority and reason for his separation.

The DD Form 214 verifies that, on 22 March 1984, the applicant was discharged UOTHC.  The authority for this separation was “chapter 10 of Army Regulation 635-200” and the narrative reason for separation was “for the good of the service-in lieu of trial by court-martial”.  This document also showed that, at the time of his discharge, the applicant held the rank of private/E-1, he had completed a total of 4 years, 10 months, and 9 days of active military service, and he had accrued 21 days of time lost due to AWOL.  

There is no indication in the record that the applicant applied to the Army Discharge Review Board, for an upgrade to his discharge, within the 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.

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.  While the applicant’s record is void of the specific facts and circumstances concerning the events that led to  the applicant’s discharge from the Army, the record does contain a properly constituted DD Form 214, signed by the applicant. This document identifies that the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial, and the Board presumed Government regularity in the discharge process.

2.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, he would have had to voluntarily request, in writing, separation from the Army in lieu of trial by court-martial.  Prior to requesting discharge, he would have been required to consult with defense counsel to be advised of the basis for the contemplated separation action and its effects; in addition, to being informed of the rights available to him in conjunction with the discharge action.

3.  In the absence of information to the contrary, the Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  It was noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.  Further, the Board considered the applicant’s entire record of service and concluded that the characterization of service issued him accurately reflects the overall quality of his service.  Therefore, the Board found an upgrade to his discharge is not warranted.

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 the aforementioned 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

__ra____  __wtm___  __mvt___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999033522	
SUFFIX		
RECON		
DATE BOARDED	2000/04/20	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1984/03/22	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	Good of the Service-In Lieu of Trial by CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.