MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            25 March 1999 
	DOCKET NUMBER:   AR1999022730

	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. Wanda L. Waller		Analyst	

The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Lester Echols		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.   

APPLICANT STATES:  In effect, that he now believes at the time he signed his discharge papers it was not in his best interest.  He also contends that the Judge Advocate General lied and led him to believe that it was his only option.   

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

He enlisted on 22 December 1977 for a period of 3 years.  He successfully completed training and was transferred to Fort Lewis, Washington, for duty as a cannon crewman.

On 9 November 1978 the applicant was convicted by special court-martial of destroying military property (valued at $219.13) and stealing military property (valued at $236.83).  He was sentenced to be reduced to the pay grade of E-1 and to forfeit $200.00 pay per month for 3 months.  The convening authority approved the sentence on 29 November 1978.     

On 25 April 1979 nonjudicial punishment was imposed against the applicant for failing to go to his appointed place of duty.  His punishment consisted of forfeiture of $200 pay per month for 2 months and 45 days of extra duty.  The applicant appealed the punishment and partial relief was granted (forfeiture was mitigated to $100.00 pay per month for 2 months (suspended for 60 days)).

On 12 July 1979 the applicant was convicted by general court-martial of unlawfully grabbing a female soldier on the arm with his hand and assaulting two male soldiers with a force likely to produce grievous bodily harm.  He was sentenced to be confined at hard labor for 3 years, to forfeit all pay and allowances, and to be discharged from the service with a bad conduct discharge. The convening authority approved the sentence on 13 September 1979.

On 4 April 1980 the unexecuted portion of the sentence to forfeiture of all pay and allowances as is in excess of forfeiture of $120.00 pay per month was suspended contingent upon good behavior.

On 4 September 1980 the findings of guilty and the sentence were set aside and a rehearing was authorized. 

On 10 November 1980, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He indicated in his request that he understood that he could receive a discharge under other than honorable conditions and that he personally made the choice to submit his request.  Additionally, he elected not to submit a statement in his own behalf.
The intermediate commanders recommended approval of the applicant’s request for discharge and that he be issued a discharge under other than honorable conditions. 

On 18 November 1980 the appropriate authority approved his request for discharge and directed that he be issued a discharge under other than honorable conditions.  

At this point, a rehearing was no longer practicable.

Accordingly, the applicant was discharged under other than honorable conditions on 19 November 1980 under the provisions of Army Regulation 635-200,
chapter 10, in lieu of trial by court-martial.  He had served 1 year, 8 months, and 14 days of total active service and he had 442 days of lost time due to AWOL and confinement.

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.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not supported by the evidence submitted or the evidence of record and his undistinguished record of service is not sufficiently mitigating to warrant relief.

4.  The applicant requested a discharge for the good of the service in order to avoid a trial by court-martial and the possibility of receiving a felony conviction.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the seriousness of the offenses for which he was charged.
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

__mkp __  __eja ___  ___le ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC1999022730	
SUFFIX		
RECON	 	
DATE BOARDED	1999/03/25	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1980/11/19	
DISCHARGE AUTHORITY	AR635-200, ch 10	
DISCHARGE REASON	In lieu of court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  877	A94.07	
2.  261	123.010	
3.  266	123.060	
4.		
5.		
6.