MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:             17 June 1998                 
	DOCKET NUMBER:     AC98-08015

	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.  The following members, a quorum, were present:

	Mr.	Curtis W. Barbee Jr.		Chairperson	
	Ms.	Karen L. Wolff		Member	
	Mr.	Edward Williamson		Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
	Mr.	Joseph A. Adriance		Analyst	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 under other than honorable conditions (UOHC) discharge be upgraded and that he be heard by the Board.

APPLICANT STATES:  In effect, that he would like to speak to the Board himself.

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

On 6 December 1989 the applicant reenlisted for 6 years while assigned in Germany.  At the time of his reenlistment he had completed 5 years, 9 months, and 26 days of honorable service; attained the rank of sergeant/E-5; held military occupational specialty (MOS) 11M (Anti Armor Team Leader); completed an earlier overseas tour in Germany; and received the following awards:  the Army Service Ribbon; two Army Achievement Medals; the National Defense Service Medal; and the Overseas Service Ribbon.

The applicant’s record indicates that during the period of service under review he had completed combat service in Saudi Arabia for which he earned the Southwest Asia Service Medal; in addition, the applicant earned his 3rd Good Conduct Medal and completed the Basic Noncommissioned Officer’s Course.  

On 20 April 1994 court-martial charges were preferred against the applicant for biting another soldier on the lip; unlawfully jumping on another soldier; two specifications of orally communicating indecent language to another soldier; and wrongfully committing an indecent assault on another soldier.  

An Article 32 investigation was completed on 1 June 1994 which recommended the applicant be tried by general court-martial.

The record also contains documented evidence that on 15 June 1994, the applicant voluntarily requested discharge for the good of the service-in lieu of trial by court-martial, under the provisions of chapter 10 of AR 635-200.  This request was made after the applicant had been advised by counsel of the basis for his contemplated trial by court-martial, the maximum permissible punishment, and of the possible effects of a UOHC discharge.  The applicant also attested to the fact that he fully understood he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veteran Affairs, and that he may be deprived of veterans benefits under state and federal law.  In addition, the applicant admitted guilt to the offense for which he was charged and indicated that under no circumstances did he desire further rehabilitation because he had no desire to perform further military service.

On 20 July 1994 the appropriate authority approved the applicant's request for discharge and directed issuance of a UOHC.  Accordingly, on 12 August 1994 the applicant was discharged after completing 4 years, 8 months, and 7 days of the period of service under review, and a total of 7 years, 6 months, and 3 days of active military service.

On 13 January 1997 the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge and found that the discharge process was proper in all respects.  

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 are 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, and advisory opinion(s), it is concluded:

1.  The Board noted the applicant’s desire to be heard personally by the Board. However, The Board concurs with the findings and conclusions of the ADRB and presumes that the applicant's administrative separation was accomplished in compliance with applicable regulations; therefore, the Board concluded a personal appearance by the applicant was not warranted or justified.  There is no indication of procedural errors by the ADRB which would tend to have substantially jeopardized the applicant's rights. 

2.  The evidence of record is clear, and shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge and after consulting with legal counsel, he 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 offense under the UCMJ, and attested to his understanding of the possible loss of veterans benefits based on receiving a UOHC discharge.

3.  The discharge proceedings conducted were in accordance with law and regulation applicable at the time.  The reason for and the character of the discharge, as revised by the ADRB to a GD, are commensurate with the applicant's overall record of military 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 the aforementioned 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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director