MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 June 2002                   
	DOCKET NUMBER:   AR2001064448

	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. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Regan K. Smith		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 characterization of service be upgraded from under other than honorable conditions (UOTHC) to honorable.

APPLICANT STATES:  In effect, that he was informed that his UOTHC would be automatically upgraded to honorable after 7 years.  He states that this has not occurred and that he is now requesting an upgrade.  The applicant states that he was treated unfairly by his chain of command and was not allowed to protect himself from discrimination.  He further states that he should have enlisted help outside his chain of command to stop the type of discrimination and prejudice he was experiencing.  The applicant believes he served honorably for over 2 years.

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

He enlisted in the Regular Army on 5 September 1979 for a period of 4 years.  He enlisted for the Army Station of Choice Enlistment Option – Fort Hood, Texas, and Military Occupational Specialty (MOS) 62B, Construction Equipment Repairer.  Following all military training, the applicant was awarded MOS 62B and was assigned to Fort Hood as his first permanent duty station.  

On 15 December 1981, the applicant was assigned to the 814th Engineer Company, 559th Engineer Battalion, with duty as an Engineer Equipment Mechanic.

On 2 March 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being drunk and disorderly.  His punishment consisted of reduction to private first class/E-3, forfeiture of $250.00 pay per month for 2 months, 45 days' extra duty, and 25 days' restriction.

On 16 March 1982, the applicant was charged with assaulting a specialist/E-4 by striking him in the face with a closed fist on 31 December 1981; disobeying a lawful order/command on 6 and 16 March 1982; being absent without leave (AWOL) from 9 thru 10 March 1982; failing to repair on 12, 13, 14, and 15 March 1982; and wrongfully burning himself by dropping cigarettes on his arm in a public place on 13 March 1982.  He was also placed in pretrial confinement on 16 March 1982.  The applicant's entire chain of command recommended trial by a special court-martial empowered to adjudge a bad conduct discharge (BCD).  The Staff Judge Advocate concurred with the recommendation.

On 25 March 1982, after consulting with counsel about his rights, the applicant requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.

On 19 April 1982, the appropriate authority approved the applicant's request for discharge and directed issuance of an UOTHC discharge.  Accordingly, on 26 April 1982, the applicant was discharged from the Army after completing 2 years, 7 months, and 22 days of creditable military service.

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, 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.  

There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

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 found no evidence of arbitrary or capricious actions by the applicant's chain of command.  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.  

2.  The record does not support, and the applicant has not presented any evidence to show, that he was told that his discharge would automatically be upgraded.  Furthermore, the Army does not have a policy to automatically upgrade discharges.

3.  The applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The Board noted that after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  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.

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

__jlp___  __aao___  __rks___  DENY APPLICATION

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

INDEX

CASE ID	AR2001064448	
SUFFIX		
RECON		
DATE BOARDED	20020604	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19820426	
DISCHARGE AUTHORITY	AR635-200, Ch10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.