MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 April 2000
	DOCKET NUMBER:   AR1999034542

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Kenneth L. Wright		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 did not understand his legal rights and his rights were not fully explained by his counsel.

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

On 29 August 1977, he enlisted in the Army for 3 years in the pay grade of E-2.  He successfully completed his training as an infantryman.  He had completed 2 years, 9 months and 25 days of total active service when he reenlisted on 29 February 1980 for an additional 4 years in the pay grade of E-4.

Nonjudicial punishment (NJP) was imposed against the applicant on 20 July 1980 for failure to go to his appointed place of duty and for disobeying a lawful order.  His punishment consisted of a reduction in pay grade, a forfeiture of pay and extra duty.

On 11 March 1981, he had NJP imposed against him for failure to go to his appointed place of duty.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

On 6 August 1981, the applicant was convicted by a special court-martial of unlawfully striking an NCO and a private, being disrespectful in language to an NCO, wrongfully communicating a threat to injure, wrongfully communicating a threat to an officer and breaking restriction.  His sentence consisted of a bad conduct discharge, confinement at hard labor, a reduction in pay grade and a forfeiture of pay.  The military judge recommended that the punitive discharge be suspended.  However, the staff judge advocate recommended that the convening authority approved the sentence as adjudged.  Notably missing from the staff judge advocate’s review, however, was any reference to the military judge’s recommendation that the convening authority suspend the punitive discharge.  Accordingly, the convening authority approved the sentence as adjudged.

On 18 November 1981, the Army Court of Military Review determined that, under the circumstances, the omission from the staff judge advocate’s review of the military judge’s recommendation that the punitive discharge be suspended was prejudicial error.  Consequently, the Army Court of Military Review set aside the action of the convening authority and returned the record of trial to the Judge Advocate General for a new review and action by the same or a different convening authority.

On 20 January 1982, the applicant was notified that the charges were pending against him for leaving his appointed place of duty without authority, being disrespectful in language to an officer and an NCO, assaulting an officer and an NCO, being drunk and disorderly and being incapacitated for proper performance of duty as a result of previous indulgence in intoxicating liquor.

The facts and circumstances pertaining to the applicant’s discharge are not on file.  The Certificate of Release or Discharge, DD Form 214, indicates that the applicant was discharged under other than honorable conditions on 22 March 1982, under the provision of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial as a result of conduct triable by 
court-martial.  He had completed 4 years, 5 months and 5 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 within 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 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, and advisory opinion(s), 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 the aforementioned requirement.

2.  In the absence of evidence to the contrary, it must be presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the overall record of service.

3.  The contentions of the applicant have been noted by the Board.  However, there is no evidence of record nor did the applicant submit any evidence that shows that he was not represented fairly by his counsel.  His voluntary request 

for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service tends to show that he wished to avoid trial by 
court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

4.  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

__klw ___  ___tap __  ___eb___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999034542	
SUFFIX		
RECON		
DATE BOARDED	2000/05/27	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1982/03/22	
DISCHARGE AUTHORITY	AR 635-200, chapter 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.