MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 August 2000
	DOCKET NUMBER:   AR2000038935

	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. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		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 general under honorable conditions.

APPLICANT STATES:  That charges were preferred against him at his company commander’s discretion.  He believes that his commander made a biased decision; in effect, two fellow soldiers -- one in his same unit -- were not charged in the incident in which all three were involved.  He believes his commander was biased because, while under his command, the applicant was on probation.

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

He enlisted in the Georgia Army National Guard on 12 July 1985 for a period of 8 years.  He was ordered to active duty for training on 26 August 1985 to attend basic combat and advanced individual training.  

The applicant was released from active duty on 4 February 1986 at Fort Jackson, South Carolina, with 5 months and 9 days creditable active service and returned to his National Guard unit.

The applicant was ordered to active duty with his unit on 30 November 1990 in support of Operation Desert Shield/Desert Storm and reported to Fort Stewart, Georgia.

On 21 March 1991, court-martial charges were preferred against the applicant and, after consulting with legal counsel, he requested separation for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200.  In so doing, he acknowledged that he was guilty of the charges against him, charges which authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that he had no desire for rehabilitation or further military service, and 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 23 March 1991, the separation authority approved the request and directed the applicant be issued a Discharge Certificate Under Other Than Honorable Conditions.

The applicant was discharged on 27 March 1991 with 9 months and 7 days 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 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.

On 10 March 2000, the Army Discharge Review Board, in a unanimous decision, 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

__sk____  __jea____  __reb____  DENY APPLICATION

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

INDEX

CASE ID	AR2000038935	
SUFFIX		
RECON		
DATE BOARDED	20000808	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19910327	
DISCHARGE AUTHORITY	AR635-200 CH10	
DISCHARGE REASON	A73.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A75.00	
2.	110.00	
3.		
4.		
5.		
6.