MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 February 2002
	DOCKET NUMBER:   AR2001064668

	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	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Melvin H. Meyer		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 discharge under other than honorable conditions (UOTHC) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that alcohol impaired his ability to serve in the Army and his record of service contains only nonjudicial punishment (NJP) for minor isolated offenses.

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

On 22 October 1979, he enlisted in the Regular Army for 3 years.  He successfully completed training and was awarded military occupational specialty (MOS) 05B10 (Radio Operator).  His record documents no acts of valor, significant achievement, or service warranting special recognition and it confirms that the highest rank he attained while on active duty was private/E-1.

His disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:  1 April 1980, for twice failing to go to his appointed place of duty and for disobeying a lawful order; and 15 August 1980, for failing to go to his appointed place of duty.  In addition, on 7 November 1980 the applicant was barred from reenlistment and while he was assigned to Fort Stewart, Georgia, he went absent without leave (AWOL) from 15 May 1981 to 7 January 1982.

The applicant’s discharge packet, containing the specific facts and circumstances pertaining to his discharge processing, is missing from his military records.  However, there is a properly constituted separation document (DD Form 214) on file that contains the authority, reason, and characterization of the applicant’s discharge.  It confirms that he was administratively discharged on 12 February 1982, under the provisions of chapter 10, Army Regulation 635-200, by reason of conduct triable by court-martial.  

The separation document also verifies that the applicant’s service was characterized as UOTHC and that he had completed a total of 1 year, 7 months, and 28 days of creditable active military service.  It also confirms that he had accrued a total of 238 days of lost time due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statue 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 court-martial charges have been preferred.  Although an honorable or general discharge is authorized, a discharge UOTHC 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 Board notes the applicant’s contention that alcohol impaired his ability to serve; however, it finds this factor is not sufficiently mitigating to warrant the requested relief. 

2.  The applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army.  However, the record does contain a properly constituted DD Form 214 that contains the authority and reason for his separation.  Therefore, the Board presumes government regularity in the discharge process.  

3.  The separation document confirms that the applicant was discharged for the good of the service/in lieu of trial by court-martial.  Procedurally, this would have required him to consult with legal counsel to be advised of the basis for the contemplated court-martial, the rights available to him, and the effects of a UOTHC discharge. In addition, he would have been required to admit guilt to the stipulated offense under the UCMJ and to voluntarily request, in writing, an administrative discharge in lieu of trial by court-martial.

4.  The evidence of records shows the applicant had 238 days of lost time due to AWOL and twice accepted NJP for acts of misconduct.  The Board concludes that these discreditable entries of misconduct in the applicant’s record were of such magnitude that it would prohibit an upgrade of his discharge.

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

__GDP__  __TAP__  __MHM__  DENY APPLICATION

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

INDEX

CASE ID	AR2001064668	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/02/21	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19820228	
DISCHARGE AUTHORITY	AR635-200 Chapter 10 .  .  .  .  .  	
DISCHARGE REASON	In Lieu of Trail by CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.		
3.		
4.		
5.		
6.