MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 June 2000
	DOCKET NUMBER:   AR2000036010

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Curtis L. Greenway		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 undesirable discharge be upgraded to general under honorable conditions.

APPLICANT STATES:  That he was falsely accused of a sodomy offense.  His 3 months in service is not reflective of his true character; he should not be punished for false accusations.

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

He enlisted on 5 August 1970 for a period of 3 years and was assigned to Fort Campbell, Kentucky, for basic combat training.

On 29 September 1970, while in basic training, the applicant was formally charged with committing sodomy with another soldier by force.  On 8 October 1970, he consulted with counsel and voluntarily requested 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 stated that he acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, that he did not desire further rehabilitation, nor did he have a desire for further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He declined to submit a statement in his own behalf.

On 26 October 1970, the separation authority, a brigadier general, approved the request and directed that the applicant be issued an Undesirable Discharge Certificate.

The applicant was discharged on 4 November 1970 with 3 months of creditable 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 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.  However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable discharge.

On 23 April 1974, the Army Discharge Review Board denied the applicant’s request for upgrade of his discharge.

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.  There is no indication that the request was made under coercion or duress.

2.  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.

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 this 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

__mdm__  __wtm__  __clg____  DENY APPLICATION

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

INDEX

CASE ID	AR2000036010	
SUFFIX		
RECON		
DATE BOARDED	20000627	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19701104	
DISCHARGE AUTHORITY	AR635-200 CH10	
DISCHARGE REASON	A77.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.