MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            28 November 2000                  
	DOCKET NUMBER:   AR2000046622

	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. Nancy Amos		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:  That his discharge be upgraded to general under honorable conditions.

APPLICANT STATES:  That his test scores were falsified by his recruiter.  Because of this, he was scheduled for a radar/electronic course, a field for which he had little aptitude although he was promised motor mechanic school.  His recruiter also told him he would remain in the States his entire tour.  The recruiter even signed a statement to this effect, then removed the statement without his knowledge.  He was barely doing satisfactory work in this course and, upon being informed of his going to Germany, he went absent without leave (AWOL).  Supporting evidence is as listed on the continuation sheet to the DD Form 149.

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

He enlisted in the Regular Army on 14 August 1978 for training in military occupational specialty (MOS) 16C10 (Hercules Fire Controlman) and special unit enlistment option – 31st Air Defense Brigade, specifically, 2d Battalion, 52d Air Defense Artillery, Homestead Air Force Base, FL.  In item 16 of his Enlistment or Reenlistment Agreement – Armed Forces of the United States, DD Form 4, he certified that he understood that only those promises contained on the DD Form 4 or recorded on the Annex(es) attached thereto, if any, would be honored and that any other promises not contained therein made by any person were not effective and would not be honored.

The applicant completed basic training and was assigned to Fort Bliss, TX for advanced individual training (AIT) in MOS 16C.

On 25 October 1978, the applicant was notified that he had been disqualified form MOS 16C due to a pattern of behavior prejudicial to the reliable performance of nuclear duties.  He acknowledged that he understood the reasons for his disqualification, did not wish to appeal the action, and elected not to make a statement.  He was then recommended for relief from the 16C course and considered for discharge under the Trainee Discharge Program.  

On 25 October 1978, the applicant completed a mental status evaluation at the request of his unit pursuant to separation under the Trainee Discharge Program. He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.  

On 1 November 1978, the applicant departed AWOL.  He was apprehended on 13 December 1978.  Personnel Control Facility Interview Sheet, FDPCF Form 691, notes that the applicant stated he joined the Army to try it out but felt he was unable to handle it.  He had difficulty in basic training adjusting to taking orders and being told what to do.  When he got to AIT he was told he was not qualified for that MOS and was in a holdover status for about two weeks.  He got tired of it and left.  He wanted out of the Army.

On 14 December 1978, court-martial charges were preferred against the applicant charging him with AWOL for the period 1 November to on or about     13 December 1978. 

On 14 December 1978, the applicant completed a separation physical examination and was found qualified for separation.

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 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 elected not to submit a statement in his own behalf.

On 16 January 1979, the appropriate authority approved the request and directed the applicant receive a discharge under other than honorable conditions (UOTHC).

On 23 January 1979, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  He had completed 3 months and 23 days of creditable active service and had 42 days of lost time. 

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.  A discharge under other than honorable conditions is normally considered appropriate.

On 4 August 1982, the Army Discharge Review Board denied the applicant’s request for an upgraded 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 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.

3.  There is no evidence to show the applicant’s recruiter falsified his test scores. His enlistment contract does show that he would be assigned at least initially to a Stateside unit upon successful completion of his AIT.  He certified that any promises made to him not listed on the DD Form 4 or Annex(es) would not be honored.  

4.  The evidence of record shows that the applicant was being considered for discharge upon his being relieved from the 16C course, which tends to contradict his contention that he was told he would be going to Germany.  When given the opportunity to make a statement (i.e., when he was relieved from the 16C course, when he received his return-to-military control interview, and when he requested chapter 10 discharge), the applicant failed to mention his recruiter’s alleged improprieties.  

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	AR2000046622	
SUFFIX		
RECON		
DATE BOARDED	20001128	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19700123	
DISCHARGE AUTHORITY	AR 635-200, ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.