MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            14 April 1999 
	DOCKET NUMBER:   AR1998012151

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Karen L. Wolff		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas B. Redfern, III		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 to honorable.

APPLICANT STATES:  That the offense did not warrant the level of discipline issued.  Since his discharge he has led a commendable life.  He has never been arrested.  He has owned his own business for over 20 yeas and has never failed to meet an obligation, either business-wise or personal.  He made some minor mistakes long ago and has paid severely because of them.

COUNSEL CONTENDS:  Counsel makes no contention.

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

He was appointed a second lieutenant in the U. S. Army Reserve on                  15 December 1966 and entered active duty that date as an Infantry officer.  His first permanent assignment was to the Signal Company, 3d Special Forces Group (Airborne), 1st Special Forces, Fort Bragg, NC.

On 23 December 1967, the applicant completed a mental status evaluation.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right and to be mentally capable of understanding and participating in board proceedings.  He was diagnosed as a passive/aggressive personality, chronic, moderate, manifested by stubbornness, passive obstruction of authority, and inability to adapt to a military setting.

On 8 January 1968, general court-martial charges were preferred against the applicant for unlawfully uttering a check, two specifications of failure to pay a debt, and breach of arrest.

On 16 February 1968, the applicant requested resignation for the good of the service.

The chain of command recommended approval.  The group commander cited the applicant’s letter of reprimand for delinquent payment of a civilian debt and disobeying a direct order; traffic violations on and off post; being out of uniform (wearing the “full flash” on his beret); receiving an Article 15 for speeding on post; receiving a written reprimand for failure to repair; receiving an Article 15 for being absent without authority; and receiving two Article 15s for operating a motor vehicle on post while his driving privileges were suspended.

On 26 April 1968, the commanding general forwarded the request to Headquarters, Department of the Army (HQDA) recommending approval with a discharge UOTHC.  He noted that “Although the maximum punishment authorized for the offense is more severe than dismissal from the service, it is considered unlikely that a sentence in excess of dismissal would be adjudged.  Accordingly, the best interests of the service would be served by this officer’s early separation without the delay and expense incident to trial by court-martial.”

On 28 May 1968, HQDA accepted the applicant’s resignation for the good of the service.

On 6 June 1968, the applicant was discharged with a discharge UOTHC, in pay grade O-1, under the provisions of Army Regulation 635-120, Chapter 5, resignation for the good of the service.  He had completed 2 years, 5 months and 4 days of creditable service and had 3 days of lost time.

Army Regulation 635-120, then in effect, set forth the basic authority for the release from active duty and discharge of officer personnel.  In pertinent part, it stated that an officer could submit a resignation for the good of the service in lieu of general court-martial when court-martial charges had been preferred against the officer with a view toward trial by general court-martial.  The character of service would be predicated on the officer’s behavior and performance while a member of the Army.  Characterization would normally be based on a pattern of behavior and duty performance rather than an isolated incident.

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.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s voluntary request for separation, in lieu of trial by court-martial, was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge given was appropriate considering the seriousness of the misconduct with which the applicant was charged, his age and rank, and his history of similar misconduct.  A military officer is held to higher standards of conduct than enlisted personnel or civilians are.  The applicant may feel that a discharge UOTHC was not warranted, but his conduct could have been tried by a general court-martial and led to a federal conviction on his records.

4.  The Board is cognizant of the applicant’s good post-service conduct, but this factor does not warrant the relief requested.

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

__KLW___  __AAO___  __TBR___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998012151	
SUFFIX		
RECON		
DATE BOARDED	19990414	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19680606	
DISCHARGE AUTHORITY	AR 635-120, Ch 4 	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.