MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            8 September 1999
	DOCKET NUMBER:   AR1999017806

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Karen L. Wolff		Member	
	Mr. Orville W. Troesch, 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 under other than honorable conditions (UOHC) discharge be upgraded.  

APPLICANT STATES:  In effect, that he was so close to finishing his tour that it was unfair to give him a bad discharge; that the punishment he received was too severe when compared with today’s standards; that the punishment he received was too harsh and was much worse than most people got for the same offense; that his command abused its authority when it decided to discharge him with a bad discharge; and that he had applied or tried to apply for a compassionate reassignment but was unfairly denied or told to forget it.

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

On 17 November 1978, the applicant entered the Regular Army for 3 years.  He successfully completed One Station Training (OST) at Fort Benning, Georgia and was assigned to overseas duty in Panama for his first permanent duty station.

The applicant’s record shows that he completed just over 2 years of service and the highest rank he attained while on active duty was private first class/E-3. There are no documented acts of valor, significant achievement, or service warranting special recognition contained in the record and there is no record of disciplinary problems prior to the incident which ultimately led to his discharge.

The evidence of record shows that court-martial charges were preferred against the applicant for rape and sodomy.  The record also shows that on 31 October 1980, 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.  The applicant’s request was made only after he had been advised, by his appointed military counsel, of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a discharge UOHC if the request were approved; and of the procedures and rights available to him.  He acknowledged that he had been advised of the implications attached to the action; that he understood the elements of the offenses for which he was charged. 

On 17 November 1980, the separation authority approved the applicant's request for separation and directed that the applicant be issued a UOHC discharge and that he be reduced to the lowest enlisted grade.  Accordingly, on 22 December 1980, the applicant was discharged after completing 2 years, 1 month, and 
6 days of active military service.  

There is no indication in the applicant’s record of service to indicate that he ever attempted to apply for a compassionate reassignment or that he was ever denied that right.  In addition, the record contains no indication that the applicant raised factors in mitigation of his misconduct during the discharge process. He stated specifically that the decision to request discharge was his own, and that under no circumstances did he desire further rehabilitation because he had no desire to perform further military service.  

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, it is concluded:

1.  After carefully examining the evidence of record and the independent evidence submitted by the applicant, the Board found the applicant’s contentions were unfounded.  The Board found no evidence of arbitrary or capricious actions by the command and no evidence to support his contention that he was denied the right to submit a request for a compassionate reassignment or that his punishment and discharge were too harsh and would be different under current standards.  The policies and procedures under which the applicant was discharged do not differ materially from those currently in effect. 

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time, and the character of the discharge is commensurate with the applicant’s overall record of service.  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 was the result of the applicant’s own desire to avoid prosecution and the punitive discharge which may have resulted.

3.  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.

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

__klw ___  __fkm___  __owt ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999017806	
SUFFIX		
RECON		
DATE BOARDED	1999/09/08	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1980/12/22	
DISCHARGE AUTHORITY	AR 635-200, C10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.00	
2.  807	A92.17	
3.  871	A94.01	
4.  881	A94.11	
5.  943	A99.11	
6.