MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           31 October 2000
	DOCKET NUMBER:   AR2000041589

	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. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge Jr. 		Chairperson	
	Mr. Allen L. Raub 		Member	
	Ms. Brenda F. Hirschi 		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 under other than honorable conditions discharge be upgraded to general under honorable conditions.

APPLICANT STATES:  That he never had a high school diploma; that his General Equivalency Diploma (GED) was "put down" by other personnel; that he was the company driver; and that he never received so much as a single nonjudicial punishment (NJP) during 12 years of service.  In support of his application, he submits:  a copy of a 6-page psychological evaluation, dated 11 August 1998; a copy of a 22 September 1970 Superior Postal Award Certificate; copies of 3 Honorable Discharge Certificates, dated 11 March 1968, 5 February 1973, and 22 April 1976; a copy of a 6 October 1971 Certificate of Appreciation; a copy of a 10 July 1975 Certificate of Appreciation; two copies of his DA Form 2-1, Personnel Qualification Record; two copies of his DD Form 214, Report of Transfer or Discharge, dated 11 March 1968; copies of his DD Forms 214 dated 6 October 1971, 22 April 1976, and 9 January 1979; a partial copy of a US Army Transportation School Diploma, dated 14 October 1969.

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

He enlisted in the Regular Army on 10 May 1967.  Following Basic Combat Training at Fort Benning, Georgia, and Advanced Individual Training at Fort Dix, New Jersey and Fort Gordon, Georgia, he was assigned to Germany as a wireman.

The applicant reenlisted on 12 March 1968, 6 February 1973, and 23 April 1976. He rose to the rank of sergeant (E-5) and saw duty at a variety of locations, including Fort McPherson, Georgia, Fort Eustis, Virginia, and a second tour of duty in Germany.  He also performed in various assignments, including wireman, movements supervisor, NBC (nuclear, biological, chemical) noncommissioned officer, and postal clerk.

While on his second tour of duty in Germany, the applicant and a fellow soldier were apprehended by the Criminal Investigation Division (CID) for indecent assault and rape of a female German national during the early morning hours of 23 July 1978.  Based upon the results of the criminal investigation, court-martial charges for indecent assault and attempted rape were preferred against the applicant on 7 November 1978.  He consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offenses.  Further, the applicant stated that he understood that he could receive an under other than honorable conditions (UOTHC) discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant did not submit a statement on his own behalf.  

Prior to action being taken on his request for discharge, the applicant was given a psychiatric evaluation by an Army psychiatrist.  He was determined to be oriented and alert, with reality testing and rational thinking intact.  There were no indications of thought or perceptual disorders and the applicant was cleared for any action deemed appropriate by his chain of command.  Accordingly, the unit commander and intermediate commanders recommended approval of a UOTHC discharge.  On 22 December 1978, the separation authority approved the discharge with a UOTHC discharge.  The applicant was to be reduced to the lowest enlisted rank. 

On 9 January 1979, the applicant was discharged with a UOTHC discharge, under the provisions of chapter 10, AR 635-200, in lieu of trial by court-martial.  At the time of discharge, the applicant had 11 years, 7 months, and 29 days of creditable service.

The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 12 September 1986, unanimously denied his request.

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 submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

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 was charged with a crime punishable by a punitive discharge. 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.

2.  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.

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

__eja____  __alr____  __bfh ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041589	
SUFFIX		
RECON		
DATE BOARDED	20001031	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19790109	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	A60.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.