MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 November 1998                   
	DOCKET NUMBER:   AC98-11251

	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. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Robert W. Garrett		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 be upgraded.

APPLICANT STATES:  That he did not warrant this type of discharge.  He states that it has been more than 15 years during which he has been a very good citizen.

COUNSEL STATES:  That in January, 1980, he was denied an upgrade by the Army Discharge Review Board (ADRB) and opines that sufficient time has elapsed and his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief.

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

He was inducted into the Army on 19 August 1970 for 2 years.  He completed his initial training and served on assignments both in the United States and overseas.  He attained the rank of specialist five on 18 March 1972.

On 10 June 1976 the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being late to work.  The punishment received is not available in the records.

On 25 January 1977 the applicant was barred from reenlistment.  His commander cited as justification for the bar several incidents of his being late for work, unsatisfactory performance as a squad leader, numerous incidents of misconduct and inefficiency, disrespect of superiors, apathy and unsatisfactory conduct that bordered on malingering and insubordination.

Prior to imposition of the bar, on 9 December 1976, the applicant was charged with violation of the UCMJ, Article 120, for raping a German National woman.

Faced with that charge and trial by general court-martial, the applicant voluntarily requested to be discharged from the Army for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He consulted with counsel, acknowledged the possible effects of receiving an other than honorable discharge, and elected not to make a statement in his own behalf.

The applicant’s company and battalion commanders recommended disapproval of his request for an administrative discharge in lieu of trial by general court-martial, citing the German-American relations of good faith under the status of forces agreement and the seriousness of the offense.  The brigade commander, however, recommended approval of the applicant’s request for discharge in lieu of trial by court-martial with issuance of a discharge under other than honorable conditions.

The appropriate authority approved the applicant’s request for discharge on 
16 March 1977.  On 13 April 1977 he was discharged under other than honorable conditions.  He had completed 6 years, 7 months and 25 days of creditable active service.

On 21 February 1980 the Army Discharge Review Board (ADRB) considered the applicant’s request for an upgrade of his discharge.  The ADRB found no mitigating circumstances which warranted a recharacterization of service and unanimously voted to deny his appeal.

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 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 type of discharge directed and the reason therefor were appropriate considering all the facts of the case.

3.  The applicant’s voluntary request to be discharged for the good of the service, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

4.  The applicant’s good post service conduct is not sufficient to warrant an upgrade of his discharge, considering his overall record of service and the serious charges he was facing when he requested discharge.

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

___GDP__  __CLA___  __RWG___  DENY APPLICATION

						Loren G. Harrell
						Director