MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 September 2000
	DOCKET NUMBER:   AR2000039805

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Anderson		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.

APPLICANT STATES:  That just as the Government found that there was prejudice in other programs, he knows that back in 1974-76 there was prejudice in the Army.  His commanding officer could have, and should have, transferred him to another unit, but did not.  In his final year, he was given special duty at the Separation and Transfer Point and was praised for his performance by his superiors.  However, his commander kept him under his command and was aware of what it did to his morale.  So with only 3 months to do on a 3-year enlistment, and after his special duty assignment was over, he simply chose a chapter 10 discharge.  His commander was intent on sending him home with a bad discharge.  He was denied promotions and reassignment and denied everything that would have made him a better soldier.  He admits that in his first year he was undisciplined, but he adjusted and came to love the Army.  However, his records were flagged for more than a year which, he claims, was illegal.  He submits no evidence to corroborate his statement.

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

He enlisted on 6 February 1974 and, after training, was assigned to Fort Hood, Texas.

On 25 October 1974, the applicant was administered nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failure to report to his appointed place of duty.

On 16 January 1975, the applicant was administered NJP for two specifications of failure to report to his appointed place of duty.  His punishment included reduction in grade to private (E-2).

On 14 July 1975, the applicant again received NJP for failure to report to his appointed place of duty.

On 5 September 1975, the applicant received NJP for sleeping on duty and quitting his post without being properly relieved.

On 30 April 1976, the applicant was formally charged with wrongful possession of 132 grams of marijuana.  On 28 July 1976, 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.  In so doing, he acknowledged that he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and added 

that he had no desire for rehabilitation or further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He submitted a statement in his own behalf, in which he admitted guilt and apologized for the wrong that he had done.  He also requested that he be given a general discharge.

On 8 September 1976, the separation authority, a major general, approved the request and directed the applicant be issued a Discharge Certificate Under Other Than Honorable Conditions.

The applicant’s DD Form 214 (Report of Transfer or Discharge) is missing from his records.

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 2 October 1978, 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.  There is no evidence of racial discrimination or prejudice either before or during the incident which gave rise to the applicant's offense.

4.  There is no evidence of an "illegal" flagging action in the applicant's file.  Army Regulation 600-8-2, Suspension of Favorable Personnel Actions (Flags), prescribes the policies and procedures for initiating and removing a suspension of favorable personnel actions.  Reasons for initiating a flag include, but are not limited to:  preferral of charges, restraint, or investigation; court-martial; NJP; AWOL; administrative reduction; letter of admonition, censure, or reprimand; elimination action; and security violations.  Once a flagging action has been completed, the flag is removed from the soldier's record.  The applicant was such a disciplinary problem that he could have been the subject of numerous, repeated flagging actions.

5.  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.

6.  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

__jhl____  __clg____  __ena___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039805	
SUFFIX		
RECON		
DATE BOARDED	20000921	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR635-200 CH10	
DISCHARGE REASON	A74.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.