MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            6 February 2001
	DOCKET NUMBER:   AR2000047951

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas Lanyi		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 honorable and that the reasons for his discharge be changed to reflect that he was discharged for the convenience of the government.

APPLICANT STATES:  In effect, that the punishment he received was too severe when compared to today’s standards, that the other person involved did not receive the same harsh punishment, that under current standards he would not receive the same type of discharge, that he was accused of homosexual conduct and threatened with court-martial if he did not resign his commission, that his behavior over the past 45 years shows that he is not a person who engages or intends to engage in homosexual acts, that there was no thorough investigation by the commander as required by the current regulation, that there was no medical exam or mental status evaluation conducted as required by the current regulation, that he was not provided an opportunity to consult with legally qualified counsel as required by the current regulation, that his conduct and efficiency ratings were high, that he was a good service member who received the National Defense Service Medal, that he was within a month of completing his tour of duty, that he has been a good citizen since his discharge and that the presumption of regularity that the Board might normally presume cannot be used in his case based on the evidence he submits. In support of his application he submits 19 documents which include letters from his wife, birth certificates of his children, four education degrees and a teaching certificate, four letters of recommendation and a letter evaluating his internship, a 25 year achievement award, a police records check, a credit record, a teacher’s certificate, a report of separation (DD Form 214), a copy of the current regulation, and acknowledgement of his community activity. 

EVIDENCE OF RECORD:  The applicant's military records were destroyed in the 1973 fire at the National Personnel Records Center which destroyed millions of service records.  However, the DD Form 214 provided by the applicant shows:

He was appointed as a United States Army Reserve (USAR) second lieutenant on 31 July 1953 and entered active duty on 8 November 1953.  He attended the field artillery basic course from November 1953 to March 1954 and was transferred to Fort Bragg, North Carolina for his first permanent duty assignment. He was promoted to the rank of first lieutenant on 15 May 1955. 

The facts and circumstances surrounding his discharge are not present in the available records.  However, his DD Form 214 shows that on 30 September 1955, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-120, due to resignation in lieu of trial by  court-martial.  He had served 1 year, 10 months and 23 days of total active service.  

On 19 June 1956 the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

A review of the documents submitted by the applicant with his application indicates that he is married with children, that he has been an excellent father and husband, that he has been actively involved in his community, that he has completed his masters and doctorate degrees since his discharge, that he has a teacher’s certificate and is a retired teacher, that he has no police record in San Antonio, Texas, and that he is actively involved in religious activities.

Army Regulation 635-120 in effect at the time, provided the policies and procedures for resignation of officers from the Army.  It provides, in pertinent part, that an officer whose conduct has rendered him triable by court-martial for an offense punishable by dismissal may tender his resignation for the good of the service in lieu of trial.  A resignation for the good of the service, if accepted by the Department of the Army, normally will be accepted as under other than honorable conditions.  Commanders will ensure that there is no element of coercion and that the officer is allowed a reasonable period of time to make a personal decision in cases where resignation is contemplated.  The officer exercising summary court-martial jurisdiction over an individual who tenders his resignation in lieu of trial by court-martial will cause the charges to be investigated in conformity with the Uniformed Code of Military Justice, Article 32, and Manual for Courts Martial 1951, paragraph 34.  Upon completion of the investigation he will prepare and attach to the tender of resignation a complete summary of all facts which relate to the conduct upon which the resignation is predicated.  The summary will include a statement of the substance of the testimony of any witnesses who have been examined, any statements, documents, or other matters considered in arriving at his conclusions and making his recommendations, a statement of any reasonable grounds for the belief that the officer is, or was at the time of his misconduct, mentally defective, deranged or abnormal.  The Department of the Army may properly refuse to accept a resignation when the officer is under investigation, under charges, awaiting trial by court-martial, absent without leave, absent in the hands of civil authorities, insane, or in default with respect to public property or public funds.  A resignation for the good of the service tendered in lieu of trial by court-martial ordinarily will not be accepted if the offense or offenses with which the officer is charged would warrant imposition by general court-martial of punishment more severe than dismissal from the service.  Once the resignation has been accepted by the Department of the Army it may not be rescinded.  

Army Regulation 600-8-24 is the current regulation governing the resignation of officers for the good of the service in lieu of trial by court-martial.  It provides, in pertinent part, that an officer may submit a resignation for the good of the service in lieu of trial by general court-martial (cannot submit unqualified resignation) if court-martial charges have been preferred against the officer with a view toward trial by general court-martial or if under a suspended sentence of dismissal.  An officer under court-martial charges or under investigation with a view towards court-martial will be retained on active duty until final disposition of the charges of the charges or investigation or until the resignation for the good of the service is approved.  The commander will ensure that such resignations are voluntary, that the officer is provided the opportunity to consult with legally qualified counsel who is a member of the Judge Advocate General’s Corp or a civilian counsel retained at the officer’s own expense, and that they are afforded a reasonable time to consider requesting a resignation for the good of the service.  A resignation for the good of the service accepted by the Secretary of the Army of his designee will normally be characterized as under other than honorable conditions.

The same regulation also provides the provisions for resignations of officers due to homosexual conduct.  It provides, in pertinent part, that an officer may elect to tender a resignation due to homosexual conduct prior to general court-martial charges being preferred against them and prior to being recommended for elimination.  An officer separated under this provision will normally be discharged under other than honorable conditions with no certificate of discharge issued.

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 and given the absence of the facts and circumstances surrounding his resignation and discharge, the Board must presume that the actions taken by the Department on his voluntary resignation to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, after a review of the regulation in effect at the time as well as the current regulation, it must also be presumed that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been noted by the Board and appear to be without merit.  A request for discharge/resignation in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned.  Accordingly, he must have voluntarily requested a discharge/resignation for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.

4.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the absence of records and the facts and circumstances that led to his voluntary resignation to avoid trial by court-martial.

5.  The Board commends the applicant on his excellent post-service conduct.  However, this in itself is not sufficiently mitigating to warrant relief.

6.  The applicant’s contention that he was unjustly discharged appears to be without merit and is not supported by the evidence submitted with his application. Accordingly, there is no basis to upgrade his discharge.  

7.  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.

8.  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

___rvo __  ___wtm__  ___tl____  DENY APPLICATION

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

INDEX

CASE ID	AR2000048169	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/02/06	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1955/09/30	
DISCHARGE AUTHORITY	AR 635-120	
DISCHARGE REASON	Resignation in lieu of trial by CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.  732	144.8000/A80.00	
3.		
4.		
5.		
6.