MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 November 2000                   
	DOCKET NUMBER:   AR2000046018

	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	
	Mrs. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Wilfred A. Hale, Jr.		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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that he was denied effective assistance from counsel at the time of his discharge and his actions were misrepresented to the reviewing authorities.

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

On 5 September 1990, the applicant enlisted in the Regular Army for 5 years.
He completed basic combat training and advanced individual training and was awarded military occupational specialty 95B (Military Police).  The highest pay grade achieved was pay grade E-2.

While stationed in Germany court-martial charges were preferred against the applicant for the attempt to commit sodomy with a female, by force and without her consent, rape and for wrongfully having sexual intercourse with a female, a woman not his wife. 

On 27 June 1991, after consulting with legal counsel the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  The applicant also acknowledged that by submitting the request for discharge he was admitting his guilt of the charges that were preferred against him.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He was afforded the opportunity to submit statements in his behalf, but declined to do so.

On 15 July 1991, the applicant’s unit commander recommended approval of a general discharge.  The commander’s recommendation was based on the applicant’s admitted adultery and false swearing.

On 31 July 1991, the appropriate authority approved the applicant’s request for discharge and directed the issuance of a discharge UOTHC.  On 19 August 
1991, the applicant was discharged, in pay grade E-1, under the provisions of 
Army Regulation 635-200, chapter 10, for the good of the service.  At the time of discharge he had completed 11 months and 15 days of creditable active service.

Army Regulation 635-200 sets forth the basic authority of 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

On 19 November 1999, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

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 evidence of record shows that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  It was also noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the offenses. 

3.  The applicant’s voluntary request for separation under the provision 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.

4.  The type of discharge and the reasons therefore were appropriate considering all the facts of the case.

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

__mkp___  __jhk___  __wah___  DENY APPLICATION

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

INDEX

CASE ID	AR2000046018	
SUFFIX		
RECON		
DATE BOARDED	20001128	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19910819	
DISCHARGE AUTHORITY	AR635-200, Chapter 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.