MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 November 2000
	DOCKET NUMBER:   AR2000041750

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Martha E. Schuler 		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 (UOTHC) discharge be upgraded to honorable.

APPLICANT STATES:  In effect, that he was accused of wrongdoing by two privates who were being separated.  Although there was no proof to substantiate the privates' allegations, he was still charged.  He refused nonjudicial punishment (NJP) and demanded a trial by court-martial.  His father was sick and the Army would not let him go home, so he "signed the paper."

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

He enlisted in the Regular Army for 4 years on 14 June 1974 and remained on continuous active duty until separated with a UOTHC discharge on 2 February 1984.

On 23 February 1983, the applicant was transferred to Korea.  He was promoted to the rank of staff sergeant (E-6) on 6 March 1983 and assigned as an infantry squad leader in Company C, 1/17th Infantry, 2nd Infantry Division, Camp Casey, Korea.  The evidence of record shows that on 29 December 1983, the applicant was accused of:  possession, transfer, and use of marijuana; inducing a private to possess, transfer, and use marijuana; two specifications of stealing Government property; and selling stolen Government property.  He was offered NJP under Article 15, Uniform Code of Military Justice, but refused and demanded trial by court-martial.  Court-martial charges were preferred against him on 13 January 1984 and it was recommended that he be tried by a special court-martial impowered to adjudge a Bad Conduct (punitive) Discharge.  On 16 January 1984, the applicant 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 a UOTHC discharge.  The applicant did not submit a statement on his own behalf.  The unit commander and intermediate commanders recommended approval of a UOTHC discharge.  On 18 January 1984, the separation authority approved the discharge with a UOTHC discharge.  The applicant was to be reduced to the lowest enlisted rank.

On 2 February 1984, 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 6 years and 2 days on his current period of service and a total of 9 years, 7 months, and 19 days of creditable 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 submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The request 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 UOTHC discharge 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.  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.

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.  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. 

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

__wtm__  __jea____  __mes ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041750	
SUFFIX		
RECON		
DATE BOARDED	20001116	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19840202	
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.