MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             19 December 2000
	DOCKET NUMBER:    AR1999027811

	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. Carl W. S. Chun			
	Ms. Antoinette E. Farley		Analyst	

  The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Kenneth L. Wright		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 changed and that he be reinstated to active duty with the rank of sergeant, pay grade E-5.  

APPLICANT STATES:  That he was put out of the military with a UOTHC discharge because he received no support and was treated differently by his chain of command than other soldiers in his unit, to include female soldiers who improperly used their American Express Government Charge Cards.  He wants an investigation of his unit.  He states that his command allowed the use of favoritism, racism, incompetence, the differences in sexes and lies to separate him as opposed to honesty.  The applicant submits a detailed letter of explanation of his problems in his unit, to include his wife spending too much money and that other individuals in the unit improperly used their credit cards, but only got minor punishments, if any.  He then states that his chain of command did not tell higher command the truth about his situation when the discharge was being processed.  He also submits a copy of DA Form 2166-7, (Noncommissioned Officer Evaluation Report) (NCOER) dated 7 October 1998 which gave him fairly high ratings.  A first lieutenant was his senior rater.  But then, on 8 February 1999, this same senior rater submitted a memorandum in which he states that he now nonconcurs with the "yes" ratings given by the rater in Part IV, section a, item 4 (Is honest and truthful in word and deed) and item 5 (Maintains high standards of personal conduct on and off duty).  He states that the applicant took a cellular phone from a civilian and wrote several bad checks, and has continuing problems with personal indebtedness.  

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

He enlisted in the Regular Army on 26 December 1989 for 3 years.  He was trained in military occupational specialty (MOS) 88M (Motor Transport Operator).  He completed an assignment to Germany, and was discharged to the Army Reserve (USAR) on 24 December 1992 to complete his service obligation.  His rank was private first class, pay grade E-3.  He had 2 years, 11 months and 9 days active service, no lost time and no recorded indisciplines.

On 2 February 1994, he reenlisted in the RA for 3 years from the USAR with the rank of specialist, pay grade E-4.  He retained his prior MOS of 88M.  He was again assigned to Germany and was promoted on 1 October 1996, to the rank of sergeant, pay grade E-5, which was the highest rank he achieved.  After completion of his tour of duty in Germany, he was assigned to Fort Benning, Georgia.  On 19 March 1997, he was discharged and immediately reenlisted for 2 years in pay grade E-5.  At that time he had 2 years, 7 months and 29 days additional active service.

On 7 July 1997 the applicant was issued a “Government Issue” American Express Card and he received a detailed counseling by his first sergeant that the card was only to be used for official government travel expenses.  On 5 February 1998, he was counseled by a staff sergeant concerning $4,322.11 in excess (unauthorized) charges on his card, and that he was delinquent in his payments.  On 29 July 1998, he was interviewed by a Military Police Investigator about the same matter, and admitted that he had made illegal purchases and was delinquent in making payments.  

On 2 February 1999, the applicant was charged with wrongfully using his American Express Government Charge Card for purposes other than official temporary additional duty (TDY) travel expenses, between 26 September and 14 December 1997, and dishonorably failing to pay his debt on the credit card from 1 January 1998 to 1 January 1999.

On 24 February 1999, the applicant consulted with legal counsel, and voluntarily requested, in writing, discharge under the provisions of chapter 10, Army Regulation AR 635-200, in lieu of trial by court martial.  In this request, the applicant admitted guilt to the offense, or a lesser (included) offense.  Further, the applicant indicated that he understood that he could receive a UOTHC discharge and that the discharge would have a significant effect on eligibility for veterans benefits.  The applicant did not choose to submit a statement in his own behalf.  

On 2 March 1999, the applicant’s unit and intermediate commanders recommended approval of a UOTHC discharge.

On 3 March 1999, the Fort Benning Staff Judge Advocate General's Office recommended approval of a UOTHC discharge.

On 5 March 1999, the separation authority approved his separation with a UOTHC and his reduction to pay grade E-1.

On 24 March 1999, he was discharged with a UOTHC discharge for the good of the service, in lieu of trial by court-martial, under the provision of chapter 10, Army Regulation 635-200.  He had 2 year and 5 days on his current enlistment, and had a total of 12 years, 2 months and 28 days active service and 1 year, 1 month and 
7 days inactive service.  His awards and decorations included the Army Achievement Medal (3 awards), the Army Good Conduct Medal (2 awards), the National Defense Service Medal, the Army Service Medal, the Oversea Service Medal (2 awards) and the North Atlantic Treaty Organization Medal.

On 22 March 2000, the Army Discharge Review Board (ADRB) denied the applicant's request for upgrade of his discharge. 

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.  Army policy states that although an honorable or general discharge is authorized, a UOTHC discharge 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.  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 this requirement.

2.  The evidence of record clearly showed that he admitted to investigators that he wrongfully used his government-issued charge card for personal purchases and he failed to repay his debt.  These actions were not consistent with the Army standards for acceptable personal conduct and performance by military personnel, especially an NCO with more than 13 years active and inactive service. 

3.  The Board noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ. 

4.  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. 

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

6.  This Board is not investigative in nature.  It is not in a position to investigate the applicant's allegations of improprieties in his unit.  If he believed these conditions existed in his unit, he should have pursued these matters through command, inspector general or judicial channels at that time.  Further, the matters concerning his NCOER are not germane to the discharge process.  Again, if the applicant believed that he was being discriminated against, then he needed to pursue this type problem through command and Equal Opportunity channels.  In summary then, the available records do not show that the applicant was unfairly treated or discriminated against and he has provided no probative evidence, except his statement with his application, to the contrary.  

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

__JPH___  _KLW___  ___RSW_  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999027811	
SUFFIX		
RECON		
DATE BOARDED	20001219	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19990324	
DISCHARGE AUTHORITY	AR 635-200 CH10	
DISCHARGE REASON	A144.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A71.00	
2.	A93.01	
3.	A9309	
4.	A9312	
5.	A94.07	
6.