MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 June 2000
	DOCKET NUMBER:   AR2000043179

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Curtis L. Greenway		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:  In effect, that his report of separation (DD Form 214) be corrected to reflect the correct date he entered active duty and that the entries in his records reflecting that he was charged under Articles 81, 132, and 134 of the Uniformed Code of Military Justice (UCMJ) be removed from his records.

APPLICANT STATES:  In effect, that his DD Form 214 dated 10 September 1990 incorrectly reflects that he entered active duty on 21 March 1979, when in fact he entered on 22 April 1976.  He also states that the entries indicating that he was charged for violations of Articles 81, 132, and 134 of the UCMJ are unjust and should be removed from his records.

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

He initially enlisted on 22 April 1976 and served until he was honorably discharged on 20 March 1979 for the purpose of immediate reenlistment.  He was issued a DD Form 214 at that time reflecting all of his service up to that date.

On 21 March 1979 he reenlisted and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-7 on 20 October 1987.

On 15 May 1990 the applicant’s commander notified him that he was considering imposing nonjudicial punishment against him for the wrongful use of cocaine during the period of 10 February and 22 February 1990.  The applicant demanded trial by court-martial.

Court martial charges were preferred against him on 6 June 1990 for the wrongful use of cocaine.

On 1 July 1990 additional charges were preferred against the applicant for conspiracy (Article 81), submitting false travel vouchers which amounted to committing fraud (Article 132), and for obtaining services under false pretenses (Article 134).

On 20 August 1990, after consulting with counsel, the applicant submitted a request for 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 his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He further elected not to submit a statement in his own behalf.

On 27 July 1990 the appropriate authority (a major general) approved the applicant’s request for discharge and directed that he be discharged under other than honorable conditions.

Accordingly, the applicant was discharged under other than honorable conditions on 10 September 1990 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 14 years, 4 months, and 19 days of total active service. 

His DD Form 214 issued at the time of separation indicates that his most recent period of active duty began on 21 March 1979, that he had served 11 years, 5 months, and 20 days of active service during the period of service covered and that he had 2 years, 10 months, and 29 days of prior active service.

The applicant applied to the Army Discharge Review Board (ADRB) on 14 December 1990 requesting an upgrade of his discharge.  The ADRB determined after a review of the evidence submitted and the evidence of record that the applicant’s discharge and characterization of service were both proper and equitable.  The ADRB denied his request on 5 December 1995.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  On 1 October 1979 a change to that regulation was published which provided that a DD Form 214 would no longer be issued for immediate reenlistments in which there were no breaks in service for periods less than 24 hours.  It also provided that information (dates) accounted for on previously issued DD Form 214’s would not be included on subsequently issued DD Form 214’s in the form of a date, but would have the total service included in the appropriate blocks.  

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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions regarding the charges against him have been noted by the Board and appear to be without merit.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the seriousness of the offenses for which he was charged and his rank and years of service. 

4.  The applicant’s contention that his DD Form 214 has an incorrect entry date is also without merit.  The applicant’s service for the period of 22 April 1975 to 20 March 1979 is memorialized on a previously issued DD Form 214 and his service for that period is indicated as prior active service on the DD Form 214 dated 10 September 1990.  Accordingly, his DD Form 214 appears to be prepared in accordance with the applicable regulations. 

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 the aforementioned 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

__wtm___  ___mdm_  __clg ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043179	
SUFFIX		
RECON		
DATE BOARDED	2000/06/27	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1990/09/10	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/GD OF SVC	
2.		
3.		
4.		
5.		
6.