MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            18 January 2001
	DOCKET NUMBER:   AR2000046011

	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. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 discharge under other than honorable conditions be upgraded to a more favorable discharge.

APPLICANT STATES:  The applicant offers no basis or argument for an upgrade of his discharge in his application to the Board.

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

He enlisted in the Illinois Army National Guard on 6 October 1978 and was ordered to active duty for training (ADT) at Fort Knox, Kentucky on 4 January 1979 to undergo his basic training.  While in basic training, nonjudicial punishment was imposed against him for breach of the peace.  His punishment consisted of a forfeiture of pay.  He completed his basic training and was transferred to Fort Benning, Georgia to undergo his advanced individual training (AIT) as an infantryman.  He completed his AIT and was released from ADT and was returned to his National Guard unit. 

On 19 February 1980 he was involuntarily ordered to active duty to complete his service obligation of 20 months and 29 days.  He reported to Fort Knox and was transferred to Fort Benning.

On 27 May 1980 the applicant’s commander initiated action to block his promotion to the pay grade of E-2 based on his poor duty performance.

Charges were preferred against the applicant on 24 October 1980 for five specifications of wrongful possession of drugs and one specification of wrongfully communicating a threat to a noncommissioned officer (NCO) to commit an assault on his person. 

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214) signed by the applicant, which shows that he was discharged under other than honorable conditions on 11 March 1981 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 3 months and 11 days of active service during the period covered by the DD Form 214.

There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitation.

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 such a request is that the individual concerned must admit guilt to the charges against them or offenses of a lesser included offense which is authorized to adjudge a bad conduct or dishonorable discharge.  The individual must also indicate that the request was done without any coercion from anyone and must explain that he understands the consequences of submitting such a request as well as the consequences of the type of discharge he might receive.  A request for discharge can only be accepted if it was voluntarily submitted by the individual concerned.  A discharge under other than honorable conditions 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 the absence of evidence to the contrary, it must be presumed that 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, it must also be presumed that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  A request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned.  Accordingly, 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.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date. 

4.  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.

5.  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

___mm__  ___js____  ____jtm _  DENY APPLICATION

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

INDEX

CASE ID	AR2000046011	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/01/18	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1981/03/11	
DISCHARGE AUTHORITY	AR 635-200, CH10	
DISCHARGE REASON	GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/	
2.		
3.		
4.		
5.		
6.