MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           27 March 2001
	DOCKET NUMBER:   AR2000046586

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Mr. Allen L. Raub		Member	
	Ms. Gail J. Wire		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 undesirable discharge (UD) be upgraded to a fully honorable discharge. 

APPLICANT STATES:  He makes no contentions.

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

That on 20 May 1974, he voluntarily enlisted in the Army National Guard (ARNG) of Michigan as a Reserve of the Army for a period of 6 years.  

On 8 July 1974, he was order to active duty for training.  He completed basic training and advanced training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  On 8 November 1974, he was honorably separated and he returned to the ARNG of Michigan to complete his service obligation. 

Between late 1974 and early 1975, the applicant failed to attend five unit training assemblies and the five unexcused absences during a 12 month period were considered unsatisfactory participation.

As a result of his failure to fulfill his ARNG service obligation, on 18 December 1975, he was advised that he was being involuntarily ordered to active duty for a period of 20 months effective 5 January 1976.

On 4 January 1976, an National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service in the ARNG of Michigan) shows that the applicant was discharged from state status under the provisions of Army Regulation 135-91, for involuntary order to active duty with a general discharge in pay grade E-2.  He had completed 1 year, 7 months and 16 days of ARNG service.  On 5 January 1976, he reported to Fort Knox, Kentucky and in February 1976, he was assigned to Germany. 

On 15 May 1976, special court-martial charges were preferred against him for assaulting another enlisted soldier by striking him in the face with a trash can lid and by striking him in the head with a mop handle.  He was also charged with resisting lawful apprehension and for striking a commissioned officer, who was in the execution of his duties.  

On 30 June 1976, the applicant underwent a psychiatric evaluation by professionally trained personnel.  He was found to be free from mental disease and able to distinguish right from wrong and to adhere to the right.  Further, it was determined that he possessed the mental capacity to understand and participate in administrative proceedings.  He was also determined to be physically qualified for separation.

On 14 July 1976, the applicant was discharged.  His records do not contain all the facts and circumstances surrounding the discharge process.  However, his records do contain a properly constituted DD Form 214 (Report of Separation from Active Duty) that was signed by the applicant at the time of discharge.

The applicant’s DD Form 214 shows that he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with a UD.  He had completed 6 months and 10 days of active military service and he had no recorded lost time. 

On 22 September 1981, the Army Discharge Review Board denied the applicant’s request for an 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of a UD.

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 available records show that the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  Some of the facts and circumstances surrounding the discharge process are missing.  However, his records show that he had been charged with commission of several offenses which were punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  He would have then been required to consult with defense counsel and would have been required to sign a statement indicating that he had been informed that he could receive a UD and the ramifications of receiving such a discharge.  He would have voluntarily requested discharge to avoid trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ.  The Board presumes regularity in the discharge process.  He has provided no information that would indicate the contrary.   

3.  His conduct was inconsistent with the Army’s standards for acceptable personal conduct and his overall quality of service does not warrant an upgrade of his discharge. 

4.  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

__rwa___  __alr____  __gjw____  DENY APPLICATION

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

					

INDEX

CASE ID	AR2000046586	
SUFFIX		
RECON		
DATE BOARDED	20010327	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19760714	
DISCHARGE AUTHORITY	AR 635-200, CH10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.7100	
2.		
3.		
4.		
5.		
6.		

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.  The type of discharge directed and the reason for discharge was appropriate considering the facts of the case.