MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  14 September 2000
	DOCKET NUMBER:  AR2000042035

	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. Raymond V. O’Connor		Chairperson	
	Mr. Elzey J. Arledge		Member	
	Ms. Margaret Patterson		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 records be corrected to show his character of service was classified as honorable or general.

APPLICANT STATES: That his discharge was based on racial discrimination.  He contends he was an eyewitness, not a participant in the assault for which he was convicted.  At the time of his discharge, he was not advised that he would receive an undesirable discharge.  Further, in effect, he contends his {command} was prompted to file court-martial charges against him because they were racially motivated.  He provided letters of support for his case.

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

On 30 June 1969, he enlisted for 3 years in the Army.  He completed his required training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was advanced to private first class, effective 23 December 1969.

During the period 28 December 1969 to 13 December 1970, he served in a unit in Vietnam.

On 10 June 1970, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) for 6 days.  His punishment included a reduction and forfeiture of pay.

On 17 August 1970, he was convicted by a Special Court-Martial of being AWOL for 24 days and disobeying an order from a commissioned officer.  His approved sentence was a reduction, a forfeiture of pay, and confinement at hard labor (suspended).

On 22 February 1971, while serving in Germany, his commander preferred charges against him for assaulting another soldier with his hands, feet and a club; for assaulting a noncommissioned officer with his hands, feet and a club; for conspiracy to assault two soldiers; and, for unlawfully entering a room with intent to commit a criminal offense, assault.  He was advised of his rights.

On 2 March 1971, after consulting with legal counsel, the applicant voluntarily requested 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 discharge under other than honorable conditions; that he understood the effects of receiving such a discharge; that he had consulted with legal counsel and he had been fully advised of the nature of his rights, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if he were found guilty.  

On 16 March 1971, in a memorandum to the appropriate separation authority, the Staff Judge Advocate indicated the applicant had been counseled at length by the legal counsel on the meaning and effect of an undesirable discharge.  Further, he indicated the applicant was counseled at length on the benefits he would lose and the substantial prejudice in civilian life he would encounter.  The applicant persisted in his desire to get out of the Army immediately with whatever discharge he could get.

On 9 April 1971, the appropriate separation authority approved his request for discharge, directed he receive an undesirable discharge and that he be reduced to the lowest enlisted grade.

On 16 April 1971, the applicant was discharged, with an undesirable discharge, under the above-cited regulation.  His separation document indicates he had       1 year, 8 months and 16 days of creditable service and 31 days of lost time.

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 or 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 consequences 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 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.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
5.  The applicant’s letters of support are noteworthy, however, they do not provide sufficient justification for changing the applicant’s records.

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

__ro___  ___ea___  ___mp___ DENY APPLICATION

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

INDEX

CASE ID	AR2000042035	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000914	
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	UP UD to HD or GD	
2.		
3.		
4.		
5.		
6.