MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 November 1998
	DOCKET NUMBER:   AC98-08753

	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	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Thomas N. Kuhn
		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, which has already been upgraded to under honorable conditions (general discharge) by the Army Discharge Review Board (ADRB), be further upgraded to fully honorable.  He also mentions wanting the Montgomery G.I. Bill (MGIB).

APPLICANT STATES:  That since he was never tried by court-martial, he was never given the right to defend himself against the court-martial charges which had been preferred against him.

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

He enlisted in the Regular Army on 30 January 1990, was awarded the military occupational specialty of administration specialist, and was promoted to pay grade E-4.

On 9 June 1993 court-martial charges were preferred against the applicant for having carnal knowledge with an underage female.

On 11 June 1993 the applicant requested discharge in lieu of trial by 
court-martial.  In that request he acknowledged guilt to the charge and stated that “under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service.”  He also stated that his military counsel had “fully advised me of the nature of my rights under the Uniform Code of Military justice; the elements of the offense thereto; the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; and the maximum permissible punishment if found guilty.”

His request was approved and he was discharged under other than honorable conditions on 23 June 1993.

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.  

On 13 March 1997 the ADRB upgraded the applicant’s discharge to under honorable conditions (general discharge).  That action was based on the applicant’s overall military record.  This was the only negative incident in the applicant’s records.  The ADRB did not change the reason for the applicant’s discharge.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.

2.  The applicant’s contention that his separation was flawed because he was not given the opportunity to defend himself at a court-martial has absolutely no merit.  He specifically requested discharge in lieu of trial by court-martial to avoid the possibility of receiving a punitive discharge and/or a sentence to confinement.  He had his chance to present his case to a court-martial and opted to decline that opportunity.  It is noted that the applicant had admitted guilt to the offense in his request for discharge.

3.  The fact that the ADRB upgraded the applicant’s discharge is within that board’s purview but has no bearing on any decision made by this Board.

4.  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

JEV   LLS   TNK  DENY APPLICATION

                                                       Edmund P. Mercanti
Loren G. Harrell
Director