MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 April 2002
	DOCKET NUMBER:   AR2001064142

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Thomas Lanyi		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 (UOTHC) be upgraded.

APPLICANT STATES:  That as a previous member of the military, he finds his life extremely torn due to his prior discharge.  He states that his discharge was never overturned and that he is hoping the court [Board] will appoint counsel to represent him.  He also states that his basic concerns are his right to counsel, due process, and the forms he signed under pressure without knowledge or reasonable understanding.

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

He enlisted in the Regular Army (RA) on 16 July 1975 for a period of 3 years and training in military occupational specialty (MOS) 76Y, Supply Specialist.  Following completion of all military training, the applicant was awarded MOS 76Y and was assigned to Fort Campbell, Kentucky, as his first permanent duty assignment.  

On 10 November 1975, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 8 thru 10 November 1975.  His punishment consisted of forfeiture of $50.00 pay per month for 1 month.

On 16 December 1975, the applicant accepted NJP for failing to go to his appointed place of duty.  His punishment consisted of forfeiture of $20.00 pay per month for 1 month and 7 days’ restriction and extra duty.

On 10 February 1976, the applicant accepted NJP for possession of marijuana.  His punishment consisted of 30 days’ confinement in the correctional custody facility and forfeiture of $201.00 pay per month for 1 month.

On 23 March 1976, the applicant accepted NJP for being disrespectful toward a noncommissioned officer (NCO).  His punishment consisted of forfeiture of $50.00 pay per month for 1 month, reduction to private/E-1 (suspended 60 days), and 14 days’ restriction and extra duty.

On 8 July 1976, the applicant was barred from reenlistment due to his numerous NJP’s and counseling statements.

On 27 October 1976, the applicant accepted NJP for dereliction of duty (sleeping on guard duty).  His punishment consisted of forfeiture of $50.00 pay per month for 1 month and 14 days’ restriction and extra duty.  

On 12 January 1977, the applicant accepted NJP for being AWOL from 3 thru 5 January 1977.  His punishment consisted of forfeiture of $75.00 per month for 1 month (suspended 90 days) and 14 days’ restriction and extra duty.

On 18 April 1977, court-martial charges were preferred against the applicant.  He was charged:  under the provisions of Article 91, UCMJ, with twice striking an NCO, twice disobeying a lawful order of an NCO, and disrespect towards an NCO; and under the provisions of Article 134, UCMJ, with twice communicating a threat to an NCO.

On 29 April 1977, after consulting with counsel about his rights, the applicant requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200, for the good of the service in lieu of trial by court-martial.  The applicant elected not to make a statement in his own behalf.  The chain of command recommended approval of the applicant’s request for discharge with a UOTHC.

On 17 May 1977, the appropriate authority approved the applicant’s request for discharge and directed issuance of a UOTHC.  Accordingly, on 20 May 1977, the applicant was discharged from the Army after completing 1 year, 10 months, and 3 days of creditable military service and accruing 2 days of lost time.

AR 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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  

The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  After considering his case, on 27 August 1980, the ADRB denied his request.

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 administrative discharge under the provisions of chapter 10, AR 635-200 in lieu of trial by court-martial was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  The Board noted the applicant’s contention regarding his concern for his right to counsel, due process, and the forms he signed (under alleged pressure) without knowledge or reasonable understanding.  The evidence of record indicates that after consulting with defense counsel and being advised of his rights and the consequences of requesting discharge under the provisions of chapter 10, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  He was provided an opportunity to make a statement in his own behalf, but declined to do so.  The Board found no evidence of coercion and is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The Board noted that the applicant’s chain of command tried to assist him in performing and conducting himself to Army standards by providing counseling and by the imposition of nonjudicial punishment; however, the applicant failed to respond appropriately.

5.  It is not within the purview of this Board to provide the applicant counsel to assist him; however, he may contact any of the veterans’ service organizations for assistance.  A list of veterans’ service organizations that appear before this Board is attached for his consideration.  

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

___KAK__  ___MDM  ___TL ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001064142	
SUFFIX		
RECON		
DATE BOARDED	20020423	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19770520	
DISCHARGE AUTHORITY	AR 635-200, chapter 10	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	DENY 	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.