MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 January 2001
	DOCKET NUMBER:  AR2000047509

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Donald P. Hupman, 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 undesirable discharge (UD) be upgraded.

APPLICANT STATES:  In effect, that he was pending a general, under honorable conditions discharge (GD), under the provisions of chapter 13 of Army Regulation 635-200, when he was coerced into accepting an UD, under the provisions of chapter 10.  He claims that his medical records were falsified at the time of his separation and that he suffered from a severe hearing loss based on his duty in the Field Artillery.  He contends his separation hearing examination was falsified and his separation was accomplished while he was under duress. He concludes that he was not treated fairly and that he was coerced into accepting the chapter 10 discharge by a Judge Advocate General (JAG) lawyer.

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

On 25 April 1972 he enlisted in the Regular Army for three years.  He successfully completed basic training at Fort Leonard Wood, Missouri and advanced individual training (AIT) at Fort Sill, Oklahoma.  Upon completion of AIT he was awarded military occupational specialty 13A (Cannoneer) and he attended the basic airborne course at Fort Benning, Georgia.  At the conclusion of this course he was assigned to Fort Lewis, Washington for his first permanent duty station.

His disciplinary history for the enlistment under review, prior to the incident which ultimately led to his discharge, included his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 23 February 1973 for being absent without leave (AWOL) from 21 to 22 February 1973.  His punishment for this offense included a reduction to PV1, a forfeiture of $150.00 per month for two months (suspended), and 30 days of extra duty and restriction.  

The record does not include a separation packet containing the specific facts and circumstances pertaining to the applicant’s separation processing.  However, the applicant’s DA Form 20 does reflect, in block 44 (Time Lost) that he was placed in pre-trial confinement on 18 January 1974 and remained in confinement until 
29 March 1974, which was just three days prior to his discharge.

The evidence or record also includes a Standard Form (SF) 88 (Report of Medical Examination) and a SF 93 (Report of Medical History) which are on file in the applicant’s Military Personnel Records Jacket (MPRJ).  These forms document the applicant’s separation medical processing and the SF 93 contains a hand written statement from the applicant which states “ I am in excellent health.”  Although the applicant made a statement in this form that he suffered a hearing loss, this was not supported by the physical examination conducted on him at the time.  
The SF 88 on file contains the results of an audiometer examination and indicates that he had a 1 score in the hearing portion of his physical profile.  It also confirms that he was physically cleared for separation by competent medical authority with no specific outstanding medical defects or diagnosis listed. 

There is also a copy of a properly constituted Department of Defense (DD) Form 214 (Report of Separation From Active Duty) on file, which was authenticated by the applicant with his signature on the date of his discharge.  This document confirms that the applicant was discharged on 2 April 1974, under the provisions of chapter 10, Army Regulation 635-200, by reason of “for the good of the service-in lieu of trial by court-martial.”  

The DD Form 214 also shows that at the time of his separation the applicant had completed 1 year, 8 months, and 25 days of creditable active military service and that he had accrued a total of 73 days of time lost due to AWOL and confinement. 

There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge within the 15-year statute of limitations.  

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 discharge an UD was authorized.  

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.  The Board noted the applicant’s contention that records were falsified at the time of his separation process and that he was coerced into accepting a chapter 10 discharge.  However, the Board finds no evidentiary support for these claims.

2.  There is no separation packet, containing the facts and circumstances pertaining to the applicant’s separation processing and the specific events that led to his discharge, on file.  However, there is a properly constituted DD Form 214 on file.  This document is authenticated by the applicant with his signature and identifies the reason and characterization of the discharge.  Thus, lacking evidence to the contrary, the Board presumed Government regularity in the discharge process.  
3.  The evidence of record shows the applicant was discharged under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, he would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  

4.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process, and that the characterization of service was commensurate with the applicant’s entire record of service for the enlistment under review.  

5.  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.

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

__dph___  ___ew___  __amc __  DENY APPLICATION

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

INDEX

CASE ID	AR2000047509	
SUFFIX		
RECON		
DATE BOARDED	2001/01/11	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/04/02	
DISCHARGE AUTHORITY	AR 635-200, C10	
DISCHARGE REASON	Good of the Service-In Lieu of Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.