MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            2 February 2000
	DOCKET NUMBER:   AR1999026101

	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.

	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. James E. Anderholm		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:  That his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD). 

APPLICANT STATES:  That he was persuaded by his fellow soldiers to partake in various activities which involved drinking, when they should have provided him help, while stationed in Germany.  He further states that he felt after leaving Advanced Individual Training (AIT) things were not as great for him as they were in Basic Combat Training (BCT).  He recalls that his sergeant pushed him, so he immobilized the sergeant with the use of martial art techniques he learned in BCT.  He admits that he was young, confused, and feeling responsible for his sister’s death when he returned to Germany after his sister’s funeral.  Finally, he states that he was scared into taking the administrative discharge without knowing all the ramifications of how it would affect his future.  In support of his application, he submits a personal letter of explanation for his conduct, a copy of his issues and a copy of his current DD Form 214 (Certificate of Release or Discharge from Active Duty).

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

That on 13 November 1979, he enlisted in the Regular Army for a period of 4 years.  He completed BCT and AIT in military occupational specialty (MOS) 19E10 (M48-M60 Armor Crewman).  On 7 March 1980, he was assigned to Germany for duty in his MOS.

On 18 April 1980, while assigned to Germany, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for assaulting his sergeant, a noncommissioned officer, by kicking him in the back of the head with his unshod feet on 12 April 1980.  His punishment included forfeiture of $224.00 for two months, reduction to pay grade E-1, restriction and extra duty for 45 days.  

The applicant was advanced to the ranks of private, pay grade E-2 on 1 December 1980 and private first class pay grade E-3, on 1 April 1981.

On 3 February 1981, the applicant accepted another NJP, for wrongfully engaging in a fight with another soldier and wrongfully destroying an auto antenna of a German National, while drunk and disorderly.  His punishment included forfeiture of $130.00, reduction to pay grade to E-2 (both punishments were suspended until 3 May 1981) and restriction and extra duty for 14 days.

On 9 March 1982, after completion of his tour, he received PCS orders to return to the United States.  On 12 April 1982, he was assigned to duties, as a Light Vehicle Driver at Fort Stewart, Georgia.

While assigned to Fort Stewart, Georgia, the applicant was listed in an absent without leave status (AWOL) on 15 June 1982.  He surrendered to military authorities on 26 August 1982.  He was charged with violation of Article 86, UCMJ, on 31 August 1982 for this period of AWOL. 

On 3 September 1982, he consulted with legal counsel and requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation 635-200.  He was advised that the offense for which he was charged could lead to a bad conduct discharge or a dishonorable discharge.  He authenticated a statement in which he acknowledged that he understood the ramifications of a UOTHC discharge.  His chain of command recommended approval.  

On 5 October 1982, the appropriate authority approved his request and directed the issuance of a UOTHC discharge.  On 26 October 1982, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of service with a UOTHC discharge.  He had 2 years, 9 months and 3 days of creditable service and 71 days of lost time.  

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 UOTHC discharge is normally considered appropriate.

There is no record that he ever submitted a request for review of his discharge by the Army Discharge Review Board within that board’s 15-year statute of limitation.

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.  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.

2.  The applicant met entrance qualification standards to include age.  There is no evidence that he was any less mature than other soldiers of the same age that successfully completed their military service obligation.

3.  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.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights. There is no indication that the request was made under coercion or duress.

5.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

6.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

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

__CMF__  ___JEA _  ___LE___  DENY APPLICATION

                                                                  Karl F. Schneider
                                                               Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027295	
SUFFIX		
RECON		
DATE BOARDED	20000202	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19821026	
DISCHARGE AUTHORITY	AR 635-200 CH 10	
DISCHARGE REASON	70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.71	
2.	144.73	
3.		
4.		
5.		
6.