MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 October 2002
	DOCKET NUMBER:   AR2002076225

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur A. Omartian		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 undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that an upgrade of his UD to a GD would allow him to obtain medical benefits from the Department of Veterans Affairs (DVA).  He states that he is in constant pain and discomfort making it impossible for him to work or do activities.  He further states that while serving in the Army, he was an impressionable teenager who made bad decisions.  In support of his application, he submits a copy of his separation document (DD Form 214). 

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

On 23 June 1971, the applicant was inducted into the Army for a period of two years.  He successfully completed training and was awarded military occupational specialty 12A (Pioneer).

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition, and it confirms that highest rank he attained while on active duty was private first class/E-3 (PFC/E-3).  However, the record does reveal an extensive disciplinary history that 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 occasions for the offense indicated:  1 June 1972, for failure to go to his appointed place of duty; and 
24 November 1972, for stealing property valued at $20.00 and larceny.  In addition, on 17 October 1972, he was convicted of stealing the merchandise of another soldier valued at $10.00 by a summary court-martial.

On 15 February 1973, court-martial charges were preferred against the applicant for the following offenses:  striking a commissioned officer in the execution of his duties on the head with his fist and on the thigh with his foot; assaulting a superior noncommissioned officer in the execution of his duties by hitting him in the face, head, and stomach with his fists; and by being disrespectful in language toward a superior noncommissioned officer in the execution of his duties.  

On 5 March 1973, after consulting with legal counsel and being advised of the basis for the contemplated trial by court-martial, the maximum allowable punishment under the UCMJ, and the possible effects of an UD, the applicant voluntarily requested to be discharged for the good of the service/in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.

On 24 March 1973, the appropriate authority approved the applicant’s discharge request and directed that he be issued an UD, and that he be reduced to the lowest enlisted grade.  On 9 April 1973, he was discharged accordingly.  At the time of his discharge, the applicant had completed a total of 1 year, 9 months, and 17 days of active military service. 

On 19 May 1981, the Army Discharge Review Board determined the applicant’s discharge had been proper and equitable, and it denied the applicant’s request for an upgrade to his discharge.

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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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 request that his discharge be upgraded because at the time he was young, impressionable, and he made a lot of mistakes; and that he now needs an upgrade in order to receive medical care from the DVA.  However, the Board finds these factors alone are not sufficiently mitigating to warrant the requested relief in light of his disciplinary history and undistinguished record of service.

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The Board notes 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, he admitted guilt to the stipulated offense(s) under the UCMJ.  

3.  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 and that the applicant’s discharge accurately reflects his overall record of service. 

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 this 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

__RVO__  __MKP  _  __AAO __ DENY APPLICATION 

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

INDEX

CASE ID	AR2002076225	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/10/01	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19730409	
DISCHARGE AUTHORITY	AR635-200 CH 10.  .  .  .  .  	
DISCHARGE REASON	In Lieu of trial by CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.