MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 January 2001                   
	DOCKET NUMBER:   AR2000048977

	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:

	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 the discharge of her deceased spouse, a former service member (FSM), be upgraded.

APPLICANT STATES:  That she believes the FSM was coerced into requesting the discharge.  There were no court records in the papers she received from the VA.  It seems there was some kind of cover up.  The request for discharge and other documents have his wrong social security number (SSN).  His Report of Separation from Active Duty, DD Form 214, shows that he served 4 years.  She was told he had served 4 months.  She provides the FSM’s DD Form 214, their marriage certificate, his death certificate, and part of the FSM’s request for discharge for the good of the service packet as supporting evidence.

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

He enlisted in the Regular Army on 31 May 1974.

On 17 September 1974, the FSM was questioned by a member of the U. S. Army Criminal Investigation Command concerning the offenses of extortion and aggravated assault of which he was suspected.  The FSM waived his rights and made a sworn statement.  He stated that he was due to go off security guard duties at 6:00 a.m. on 14 September 1974 but his replacement, B___, was an hour late.  It had been policy among him and the other trainees that they would cover for each other but the one who was late would pay whoever covered for him.  The FSM told B___ that he owed him $5.00 for covering for him.  B___ started talking smart.  He told B___ he would write him up for being late and that he would get into trouble.  He later saw B___ in the latrine and asked for the $5.00.  He did not notice the others in the hallway gathering around to see what was happening and he did not ask them to intimidate B___.  As regards the assault, he did hit C___ with his fists in the back of the neck.  He realized he did wrong but C___ caused it to happen.  C___ tried to talk smart with him.  The FSM picked up a pipe.  C___ called the FSM names and made him angry by telling the FSM what he would do if he put the pipe down.  He did not hit C___ with the pipe; it was more of a poke.  C___ then walked away.  The FSM did not know why he did it but he ran at C___ and hit him.  

On 17 September 1974, the FSM was placed in pre-trial confinement.  

On 19 September 1974, court-martial charges were preferred against the FSM for intent to unlawfully obtain $5.00 by communicating to B___ a threat to report him for being late unless he paid the FSM $5.00 (extortion) and for assault by striking C___ on the hip with an 84 inch pipe and on the back of the neck with his fist.

On 20 September 1974, the court-martial charges were forwarded by the battalion commander to the brigade commander with a recommendation that the FSM be tried by special court-martial.

On 24 September 1974, after consulting with legal counsel, the FSM 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.  Paragraph 1 of the request contains the FSM’s incorrect SSN (___-__-___4 instead of ___-__-___9).  The FSM signed the request stating that he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person.  He stated that by submitting the request for discharge he acknowledged that he was guilty of the charge(s) against him.   The FSM was advised of the effects of a discharge under other than honorable conditions (UOTHC) and that he might be deprived of many or all Army and Veterans Administration benefits.  He did not submit a statement in his own behalf.

On 24 September 1974, the FSM’s commander informed the FSM of his rights to counsel as explained in his request for discharge for the good of the service.  This document contains the FSM’s incorrect SSN (___-__-___4) in two places.  The FSM signed the document.

On 26 September 1974, the applicant completed a separation physical examination and was found qualified for separation.  On this date also he completed a mental status evaluation and 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 26 September 1974, the FSM’s company commander recommended approval of the FSM’s request by a first endorsement.  The FSM’s correct SSN appears on this endorsement.  The company commander recommended the FSM be given an undesirable discharge.

On 1 October 1974, the FSM’s battalion commander recommended approval of the FSM’s request by a second endorsement.  The FSM’s correct SSN appears on this endorsement.  The battalion commander noted that upon his initial interview with the FSM on 27 September 1974, the FSM had some questions relative to the charges and his request although the interview disclosed that he submitted the request without coercion.  The FSM’s counsel was requested to confer with the FSM.  The battalion commander’s 1 October 1974 interview with the FSM disclosed that the FSM’s questions had been clarified and that he was submitting the request on his own volition.  The battalion commander recommended the FSM be given an undesirable discharge.

On 4 October 1974, the FSM’s brigade commander recommended approval of the FSM's request for discharge by a third endorsement.  The FSM’s correct SSN 
appears on this endorsement.  The brigade commander recommended the FSM be given a general discharge.

On 7 October 1974, the acting Staff Judge Advocate recommended the approval authority approve the FSM’s request for discharge and separation of the FSM with an undesirable discharge.

On 7 October 1974, the appropriate authority approved the FSM’s request and directed that he receive an undesirable discharge UOTHC.  The approved endorsement contained the FSM’s correct SSN.

On 10 October 1974, the FSM was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC and an Undesirable Discharge Certificate.  He had completed 4 months and 10 days of creditable active service.  His DD Form 214, item 18c erroneously shows that he completed 4 years, 4 months and 10 days of total active service.  It shows that he had no 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, 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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. A discharge UOTHC is normally considered appropriate.

There is no evidence the FSM ever applied to the Army Discharge Review Board (ADRB) 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 FSM’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 evidence shows that the FSM was given a further opportunity to clarify any questions he had concerning the request prior to final approval.  In the absence of evidence to the contrary, the Board presumes he knew what he was signing when he requested the discharge and made the request because he did not desire trial by court-martial.

3.  The Board notes that the FSM admitted to committing aggravated assault in his 17 September 1974 sworn statement, an offense punishable by court-martial and a punitive discharge.  In requesting discharge for the good of the service, he also admitted his guilt of the charges of extortion and aggravated assault.

4.  The Board notes that the brigade commander recommended that the FSM receive a general discharge rather than an undesirable discharge UOTHC.  However, this was only a recommendation.  The approval authority had the authority to direct the FSM be given an undesirable discharge UOTHC.

5.  The Board acknowledges that several of the documents in the chapter 10 paperwork contain an administrative error in showing the FSM’s SSN.  However, the FSM signed all pertinent documents and the administrative error did not create a material error in the processing of his request for discharge.

6.  The Board also notes that the FSM’s DD Form 214 erroneously credits him with 4 years, 4 months and 10 days of total active service.  The Board concludes that this was a typographical error and did not result in a detriment to the FSM. 

7.  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

__emw___  __amc___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2000048977	
SUFFIX		
RECON		
DATE BOARDED	20010111	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19741010	
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.