MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 March 1999
	DOCKET NUMBER:   AR1999017415

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Ms. Karen Y. Fletcher		Member	
	Mr. Ernest W. Lutz, Jr.		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 be upgraded to a general discharge.

APPLICANT STATES:  In effect, that he felt coerced and intimidated at the time of his discharge which resulted in depression and apathy concerning his surrounding issues.  He also states that his battalion commander advised him against his process and in which he agreed and was given no alternative.

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

The applicant entered active duty on 10 February 1978 and completed training as a combat engineer.  After completion of advanced individual training, he was assigned in his proper military occupational specialty at Fort Campbell, Kentucky, on 23 May 1978. 

On 30 August 1978, non judicial punishment (NJP) was imposed against the applicant for possession of marijuana.  His punishment consisted of a forfeiture of and 30 days of correctional custody.

On 11 December 1978, court-martial charges were preferred against the applicant for disobeying a lawful order, treatment with contempt toward a noncommissed officer, AWOL and for being absent from his appointed place of duty.

On 14 December 1978, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provision of AR 635-200, chapter 10.  In doing so he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the VA if a discharge under other than honorable conditions were issued.  He also elected not to submit a statement in his own behalf.  

The applicant underwent a separation medical examination on 15 December 1978 and was found qualified for separation.

On 19 December 1978, the separation authority approved the recommendation for discharge and directed that he be furnished an Other Than Honorable Discharge Certificate.  The applicant was discharged on 27 December 1978.  He had a total of 10 months, and 15 days of creditable service and had 3 days of lost time due to AWOL and confinement.

The is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge with its 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for 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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after the charges have been preferred and must include the individual’s admission of guilt.  Although an honorable or general discharge is authorized, 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 was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and VA benefits.

2.  Contrary to his contention that he felt coerced and intimidated at the time, the applicant's request for a chapter 10 discharge, 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.

3.  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 trail by court-martial, was administratively correct and in conformance with applicable regulations.  

4.  Evidence of record shows that his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  Based on the foregoing conclusions, the type of discharge directed and the reasons therefor were appropriate considering all of the facts of the case.

6.  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.

7.  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

JMA____  KYF____  EWL____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999017415	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990318 	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19781227	
DISCHARGE AUTHORITY	AR635-200, Chapter 10	
DISCHARGE REASON	For the Good of the Service	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.