MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  31 August 2000
	DOCKET NUMBER:  AR2000039116

	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		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Joe R. Schroeder		Member	
	Ms. Barbara J. Ellis		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 (UOTHC) be upgraded to general or honorable.

APPLICANT STATES: He contends that his Sergeant Major assaulted him in front of a troop formation and forced him to request discharge [under chapter 10, Army Regulation 635-200].

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

On 23 February 1976, he enlisted in the Army.  He completed his required training and was awarded military occupational specialty 94B (Food Service Specialist).  He was advanced to pay grade E-2, effective 23 June 1976.

During the period 13 July to 5 November 1976, he served in Korea.

On 15 September 1976, he accepted nonjudicial punishment for violation of a lawful general regulation by being off post without a valid pass.  His punishment included restriction, extra duty and a forfeiture of pay.

On 19 October 1976, the unit commander preferred charges against the applicant for being absent without leave for the periods 27 to 30 September,       1 to 7 October, and 8 to 17 October 1976; escape from lawful confinement on   17 October 1976; and for breaking restriction on 27 September 1976.  He was advised of his rights.

On 22 October 1976, after consulting with legal counsel, the applicant voluntarily submitted a request for discharge under Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He acknowledged that he was guilty; that he could receive a UOTHC discharge; and that he understood the effects of receiving such a discharge.  He indicated he had consulted with legal counsel, that he had been fully advised of the nature of his rights, and the facts whch must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty.  He also was informed of the possible defenses, which appeared to be available at the time and the maximum permissible punishment if he were found guilty.

On 29 October 1976, the appropriate separation authority approved his separation with a UOTHC discharge and directed his reduction to pay grade E-1.

On 1 November 1976, a physical examination cleared the applicant for separation.

On 5 November 1976, the applicant was discharged, with a UOTHC discharge, under the above -cited regulation.  His separation document indicates he had     7 months and 5 days of creditable service and 18 days of lost time.

On 23 December 1983, the Army Discharge Review Board found his discharge to be proper and equitable and denied his request for upgrade.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10, of that regulation, provided, in pertinent part, that a member who had committed an offense of offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time of the applicant’s separation, the regulation provided for an UOTHC discharge with the issuance of an Undesirable Discharge Certificate.

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 chose to request an administrative discharge rather than risk the consequence of a court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

2.  The applicant’s voluntary request for separation under 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.  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

___sc_____  __js___  ___be__  DENY APPLICATION

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

INDEX

CASE ID	AR2000039116	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000831	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.110	Upgrade Discharge – Ch 10	
2.		
3.		
4.		
5.		
6.