MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 April 2000
	DOCKET NUMBER:   AR2000036148

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Thomas A. Pagan		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 discharge under other than honorable conditions be upgraded to honorable, that the reason for separation be changed to reflect the convenience of the government, and that his reentry (RE) code be changed to RE-1.

APPLICANT STATES:  In effect, that he was an excellent soldier until he got married too young and that is when his problems began.  He further states that he and his wife could not get along and that his wife kept calling his unit complaining and nagging about one thing or another.  He goes on to state that at the time, he was serving in the pay grade of E-5 as the charge of quarters CQ, his wife kept calling and he flipped out, got in his car and left post and kept driving.  He returned 3 hours later and by that time, because his wife kept calling, the battalion CQ became involved and he was charged with being AWOL or failure to repair.  At that point, he made the biggest mistake of his life and lied.  He continues by stating that the pressure of what was happening at the time caused him to lie to his commander and tell him that he blacked out and did not remember anything and then he forged his medical records to reflect that he had a history of blackouts.  He also states that to this day he regrets what he did but at the time he thought he would lose everything he had worked so hard for.  Therefore, he requested that he be discharged with a general discharge; however, his military counsel was inadequate and he was unjustly discharged under other than honorable conditions, a punishment that was too harsh for the offenses for which he was charged and considering his otherwise excellent record of service.  He goes on to state that his post service conduct has been excellent, that he has been ordained as a minister and has maintained steady employment.  He was a good soldier that made a very bad mistake and suffered a momentary lapse in judgement but that he should not have to suffer for the rest of his life.  In support of his application he submits four third party letters of recommendation, a copy of his ordination certificate, copies of letters of commendation/appreciation received while in the service, a letter of appreciation from customers at his job, a copy of a news article, and copies of course completions from various schools. 

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

He enlisted in Newark, New Jersey on 26 June 1978 for a period of 4 years, training as an infantryman, and a cash enlistment bonus.  He successfully completed his training and was transferred to Fort Stewart, Georgia, where he remained until he was transferred to Germany on 10 December 1979.  His dependents arrived 6 months later.

He was promoted to the rank of sergeant on 7 October 1981 and reenlisted on 20 September 1982 for a period of 4 years and assignment to Fort Ord, California.  He departed Germany with his dependents on 18 December 1982 and arrived at Fort Ord on 21 January 1983.
The actual facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records show that he was charged with failure to repair, making a false official statement, and altering a public record.

On 8 May 1984, 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.  The unit commander recommended approval and recommended that he be issued a General Discharge Certificate. 

The battalion commander, brigade commander, and Staff Judge Advocate recommended approval and the issuance of a discharge under other than honorable conditions.

On 22 May 1984 the appropriate authority approved the applicant’s request and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 11 June 1984 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served 6 years, 8 months, and 127 days of total active service and was issued a code of RE-3 and 3C.

On 9 February 1985 he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He cited essentially the same reasons as he has cited to this Board.  The ADRB denied his request on 17 April 1986.

The third party statements submitted by the applicant with his application indicate that the applicant displays good character and is a good employee.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge.  A discharge under other than honorable conditions is normally considered appropriate and there are no provisions for an automatic upgrade of such a 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.  In the absence of evidence to the contrary, it must be presumed that 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.  Accordingly, it must be presumed that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  A request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned.  Therefore, it appears that he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

4.  The applicant’s contentions have been noted by the Board and he is to be congratulated on his accomplishments; however, good post-service conduct in itself is not sufficient enough to mitigate the charges against him or to warrant an upgrade of his discharge.

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

__klw ___  ___tap __  __eb____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2000036148	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1984/06/11	
DISCHARGE AUTHORITY	AR635-200, CH10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689 	144.7000/REQ FOR DISCH FOR GOOD OF SVC	
2.		
3.		
4.		
5.		
6.