MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 January 2003
	DOCKET NUMBER:   AR2002078885

	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:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Tracey L. Pinson		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 an honorable discharge (HD).

APPLICANT STATES: In effect, that his discharge is unjust and should be upgraded because his company commander promised him that he would be separated for unsatisfactory performance, Chapter 13.  He states that he was told by the Sergeant Major and the Colonel that the only way he was going to be discharged would be under other than honorable conditions (UOTHC).  He further states that he asked to leave the Army due to his heroin usage and that he was not allowed to transfer to another location in the United States.  He indicates that he applied to the Army Discharge Review Board (ADRB) approximately nine years ago and never received a response.  He claims that he now feels ashamed of the discharge he received and the stress and embarrassment it has brought to his family.

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

On 29 November 1974, the applicant entered the Regular Army for 3 years.  He successfully competed training and was awarded military occupational specialty (MOS) 11E (Armored Crewman).  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-2.

The applicant’s record also shows a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on 22 December 1975, for failing to go to his appointed place of duty.

The applicant’s discharge packet containing the specific facts and circumstances surrounding his discharge processing is not in the record.  However, there is a properly constituted separation document (DD Form 214) on file that contains the authority and reason for discharge.  This document was authenticated by the applicant with his signature and it confirms that on 14 May 1976, he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  At the time of his discharge, he had completed a total of only 1 year, 5 months and 16 days of creditable active military service.

There is no evidence that the applicant applied to the Army Discharge Review Board for an 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 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.

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 contentions that his discharge was unjust and that it should be upgraded based upon a promise to him that the reason for his separation would be Chapter 13, unsatisfactory performance.  However, they are not supported by the evidence submitted with the application or the evidence of record. 

2.  The applicant’s record is void of facts and circumstances concerning events that led to a discharge from the Army.  The Board notes that his record contains a properly constituted DD Form 214, which was authenticated by the applicant with his signature, and it presumes government regularity in the discharge process.  This separation document confirms that he was discharged in lieu of trial by court-martial.  

3.  Procedurally, this would have required the applicant to consult with legal counsel after being charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  In addition, he would have had to voluntarily request separation after admitting guilt to the stipulated offense under the UCMJ.  Lacking evidence to the contrary, the Board 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.  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

__KAK__  __MHM  _  __TLP __  DENY APPLICATION 

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

INDEX

CASE ID	AR2002078885	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/01/28	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19760514	
DISCHARGE AUTHORITY	AR 635-200 	
DISCHARGE REASON	In Lieu of Trial By CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.0133	
2.	144.9405	
3.		
4.		
5.		
6.