MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 May 2000
	DOCKET NUMBER:   AR1999034261

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		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 discharge under other than honorable conditions be upgraded to an honorable discharge.

APPLICANT STATES:  That he was told when he left the Army that his discharge would be upgraded to honorable after six months.

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

On 2 May 1979, he enlisted in the Army for 3 years in the pay grade of E-1.  He successfully completed his training as a cannon crewman and he was transferred to Fort Ord, California.  On 25 November 1981, he reenlisted in the Army for 3 years in the pay grade of E-3.

On 19 December 1981, the applicant cut his right wrist with a razor in an attempt to commit suicide.  On 21 December 1981, he underwent a psychiatric evaluation.  During the evaluation, he stated that he had been under a lot of stress for the past few days because the day after he got married his wife, who had joined him to get married, had left to return to her parents and she did not seem too interested in assuming the responsibility of being his wife.  He further stated that he already had an ongoing financial problem and his marriage going down the drain had left him with no reason to live.  The applicant was found to be capable of distinguishing right from wrong and of adhering to the right.  He was further found to be responsible for his actions and to possess the mental and emotional capacity to understand and participate in board and other legal proceedings.

A formal Line of duty Investigation was initiated on 7 January 1982 and the investigating officer determined that the applicant’s injury was not in the line of duty and due to his own misconduct. 

Nonjudicial punishment (NJP) was imposed against the applicant on 10 March 1982, for failure to obey a lawful order.  His punishment consisted of a forfeiture of pay and extra duty.

Charges were preferred against the applicant and referred to a special court-martial on 12 May 1982.  He was charged with possession of lysergic acid diethylamide (LSD), selling LSD, transferring LSD and larceny by trick.  On 17 May 1982, he was convicted of committing larceny by trick.  His sentence consisted of a reduction in pay grade and hard labor without confinement for 30 days.

However, on 4 June 1982, before the court-martial convening authority approved the findings and sentence of the special court-martial, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service.  In his request for discharge he indicated that he was making the request with full knowledge that he was tried by a special     court-martial and was not adjudged a punitive discharge.  He also indicated that he understood that he could remain in the Army if he so desired.

The applicant also signed an acknowledgement that he had been advised by counsel of the consequences of accepting a discharge under other than honorable conditions, that he was aware that he could apply for an upgrade of his discharge to the Army Discharge Review Board and this Board, and that in all likelihood his discharge would not be upgraded and would remain with him for the rest of his life.

The request for discharge was approved by the appropriate authority on 16 June 1982.  Accordingly, on 29 June 1982, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10 for the good of the service.  He had completed 3 years, 1 month and 27 days of total active service.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge with that board’s 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 up until the time the action has been finalized by the court-martial convening authority.  It 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.  The actions by the Army in this case were proper and there is no doubt to be resolved in favor of the applicant.

2.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.
3.  The applicant’s contentions have been noted by the Board.  However, there is no evidence of record that support his contention that he was told that his discharge would be upgraded 6 months after his discharge.  He voluntarily submitted a request for discharge for the good of the service in lieu of remaining on active duty and accepting his court-martial conviction.  Although he may now feel he made the wrong choice, he should not be allowed to change his mind at this late date.

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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__cmf ___  __fe ____  __rjw ___  DENY APPLICATION

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

INDEX

CASE ID	AR1999034261	
SUFFIX		
RECON		
DATE BOARDED	2000/05/17	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1982/06/29	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  715	144.7200/A72.00/Larceny	
2.  717	144.7400/A74.00/Drugs	
3.  718	144.7500/A75.00/DOLO	
4.		
5.		
6.