MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             30 January 2001
	DOCKET NUMBER:    AR2000045387

	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	
	Ms. Antoinette E. Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Brenda F. Hirschi		Member	
	Mr. Thomas E. O’Shaughnessy		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 reviewed and upgraded to an honorable discharge, thereby allowing him to receive veterans benefits.

APPLICANT STATES:  That he was unjustly put out of the military with a chapter 10 discharge because he feels he was “set up” and “framed” by the Army while stationed in Germany.  The applicant also submits a copy of his DD Form 214, (Report of Separation from Active Duty), a detailed letter of explanation for his actions, and several extracts of his military records in support of his case.

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

On 14 June 1977, he enlisted in the Regular Army for a period of 3 years.  He completed his basic training at Fort Dix, New Jersey on 4 August 1977.  He was then transferred to Fort Belvoir, Virginia for advance training in military occupational specialty (MOS) 52B20 (Power Generator Equipment Operator/Mechanic).  On 
28 October 1977, he was then transferred to Germany for duty in his MOS.

On 1 March 1978, he was reclassified into MOS 63B (Power Generator/Wheel Vehicle Mechanic).  On the same day, he was promoted to the rank of private first class, pay grade E-3.

On 7 February 1979, the applicant was charged with violation of Article 134, Uniform Code of Military Justice (UCMJ), for wrongfully having in his possession and selling two packets, more or less of a habit forming narcotic drug, to wit: heroin on 
31 October 1978.  He was also charged with violation of Article 128, UCMJ for assaulting three privates first class or specialists on 24 December 1978.  

On an unknown date, the applicant consulted with legal counsel and voluntarily requested discharge under the provisions of chapter 10, Army Regulation AR 635-200, in lieu of trial by court-martial.  He was advised that the offenses for which he was charged could lead to a UOTHC discharge.  He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UOTHC discharge, and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Veterans Administration.  He did not submit a statement in his own behalf.  

On 12 April 1979, his chain of command recommended approval of his request for discharge in lieu of trial by court-martial.  

On 18 April 1979, the separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with a UOTHC discharge.

He received a medical evaluation on 24 April 1979 and also a mental status evaluation clearance for separation on 7 May 1979.

On 10 July 1979, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial with a UOTHC discharge.  He had 2 years and 27 days of creditable service and no lost time.  

On 7 June 1983, the Army Discharge Review Board (ADRB) panel denied his request for upgrade of his discharge.

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 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 a chapter 10 discharge, for the good of the service, 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.  There is no indication that he received less than competent legal counsel or that his request was made under coercion or duress. 

3.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

4.  This Board is not investigative in nature.  It is not in a position to investigate the applicant’s allegations of improprieties by his chain of command.  If he believed these conditions existed in his command, he should have pursued these matters through command, inspector general or judicial channels at that time.  In summary, the available records do not show that the applicant was setup or framed or otherwise unfairly treated during the discharge process. 

5.  Determination to entitlement to veteran benefits does not rest with this Board, rather it rests with the Department of Veterans Affairs.  The applicant is advised to contact that agency on these matters.

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

__aao___  __bfh___  __teo____  DENY APPLICATION

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

INDEX

CASE ID	AR20000453875	
SUFFIX		
RECON		
DATE BOARDED	20010130	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19790710	
DISCHARGE AUTHORITY	AR 635-200/CH10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	144.0O	
3.		
4.		
5.		
6.