MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 February 2000                   
	DOCKET NUMBER:   AR1999027253

	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.

	Mrs. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Mr. Fred Eichorn		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger Able		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 (UOTHC) be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that he was young and naive and he made many mistakes. 

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

The applicant was born on 2 April 1959.  On 1 July 1980, the applicant enlisted in the Regular Army for 3 years.  His military occupational specialty was 76Y10 (Unit Supply Specialist).  The highest grade he achieved was pay grade E-4.

On 7 February 1983, court-martial charges were preferred against the applicant for some type of sexual misconduct and for some type of drug abuse problem.  The particulars surrounding the charges are missing from his file. 

On 16 March 1983, after consulting with legal counsel the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  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 Veterans Administration benefits.  He was afforded the opportunity to submit statements in his behalf.  The applicant stated in effect, that he wanted an honorable discharge; that he wanted to complete his term of obligated service; that after completing his term of service he wanted to return home to obtain employment; that he did not realize that the pictures that were taken of him would be published in a magazine; that at no time did he desired to discredit or compromise the integrity of the United States Army or Air Force; that he was asked to pose for those pictures for money and for the possibility of meeting females; that it did not occur to him until December 1982, when investigators informed him of the charges that he had committed a crime; that he thought that the pictures would be used for the photographers private collection; that he did not think that what he did was a crime because the photographer and his friend appeared to have receive official permission to take the pictures on an Air Force Base; that he did not feel that what he did was illegal, because pictures in magazines similar to the one that he appeared in was sold in book stores; that these magazines contained descriptions of oral and anal sodomy and other acts which may be prohibited by the UCMJ; that the possession of these pornographic magazines were legal and not prohibited in the barracks; that in fact barracks life and the atmosphere of the units in Germany, as in cabarets and brothels led him to believe that this was socially acceptable behavior; that he did make a mistake and does wish to be branded a criminal because of this mistake; that he had no criminal intent when the photographs were being taken; that he enjoyed his time in the Army and 

merely ask that he be allowed to receive a good discharge or complete his 
3 months left in the Army, so that he can seek gainful employment in Puerto- Rico. 

On 25 March 1983, the Commanding General approved the applicant’s request for discharge and directed the issuance of a Under Other Than Honorable Discharge Certificate.  On 13 April 1983, 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 discharge UOTHC.  He had completed 2 years, 9 months and 13 days of creditable active 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 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 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.  

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'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.

3.  The applicant's contention that he was young and naive at the time is not sufficiently mitigating to warrant relief. 

4.  Therefore, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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

__fe____  __kak___  __ra____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027253	
SUFFIX		
RECON		
DATE BOARDED	20000215	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19830413	
DISCHARGE AUTHORITY	AR635-200,chapter10 .  .  .  .  .  	
DISCHARGE REASON	A70.000.	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.