MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            11 January 2001
	DOCKET NUMBER:   AR2000049361

	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. Ernest M. Willcher		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Donald P. Hupman		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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD).

APPLICANT STATES:  The applicant states, in effect, that during the appellate review process, it was determined that certain evidence was inadmissible, therefore, he was discharged under the provisions of chapter 10, Army Regulation 635-200 with a GD (actually a UOTHC discharge).  He submits a letter written in his own behalf, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and documents showing the issues that the defense counsel raised during the appellate review. 

COUNSEL CONTENDS:  The applicant’s counsel contends that the applicant believes his UOTHC discharge is inequitable and should be upgraded as a result of his court-martial findings being dismissed.  A GD may enable the applicant to obtain medical treatment that he needs from the Department of Veterans Affairs.

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

That he had two prior honorable periods of service in the Regular Army (RA) from 18 October 1982-31 March 1985 and from 1 April 1985-7 July 1988.  His military occupational specialty (MOS) was MOS 76Y (Unit Supply Specialist). He was promoted to pay grade E-6 on 20 August 1987.  He was honorably discharged on 7 July 1988 for the purpose of immediate reenlistment.  He had completed 5 years, 8 months and 19 days of active service.  He had no recorded indisciplines or lost time.  He was awarded the Army Achievement Medal, fourth award; the Army Good Conduct Medal, second award; the Noncommissioned Officer Professional Development Ribbon (Basic Level); and the Army Service Ribbon during his first two periods of enlistment.

On 8 July 1988, he reenlisted in the RA for 2 years in pay grade E-6 which was the highest grade that he achieved.  His reenlistment option was for current station stabilization at Fort Benjamin Harrison, Indiana. 

On 12 April 1989, the applicant was convicted by a special court-martial of failure to obey a written order by engaging in an improper senior/subordinate relationship and of committing adultery with a trainee on two separate occasions. He was sentenced to reduction from pay grade E-6 to pay grade E-1 and a bad conduct discharge.

On 18 August 1989, the applicant was placed on involuntary excess leave pending an appellate review of his case.

On 9 September 1992, the United State Court of Military Appeals ordered the sentence set aside and a rehearing was ordered due to erroneous admission of certain testimony during the sentencing process that may have been prejudicial.  

On an unknown date, he consulted with legal counsel and requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  He was advised that the offense for which he was charged could lead to a UOTHC discharge.  He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UOTHC discharge.  The available records contain no statement submitted by the applicant in his own behalf at that time.

On 1 December 1992, the appropriate authority approved the applicant’s request for discharge and directed the issuance of a UOTHC discharge in accordance with chapter 10, Army Regulation 635-200.  He was reduced from the rank of staff sergeant, pay grade E-6 to the rank of private, pay grade E-1.  

On 13 December 1993, the applicant’s DD Form 214 shows that he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial, with a UOTHC discharge.  He had completed 5 years,     5 months and 6 days of active military service on the enlistment under review.  He was extended on active duty for 1,650 days after the normal expiration of term of service at the request and for the convenience of the government.  He also had completed 5 years, 8 months and 20 days of prior active military service.  His total active military service equaled 11 years, 1 month and 26 days. His first two periods of prior honorable service are now considered to be two complete and unconditional separations. 

The Department of Veterans Affairs (DVA) determines qualifications for benefits administered by that agency.  The DVA generally holds that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until the DVA or the Service Department determines that the early discharge amounted to a complete and unconditional separation from the military

Army Regulation 635-200 (Enlisted Personnel Separations), chapter 
10 (Discharge for the Good of the Service), in effect at the time states that a member who has committed an offense or offenses for which the Uniform Code of Military Justice and the Manual for Courts-Martial authorize punishment which includes a punitive discharge (bad conduct or dishonorable 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.  Although, an honorable or a GD could have been awarded, a UOTHC discharge is normally considered appropriate.
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 applicant's UOTHC discharge issued on 13 December 1993, in lieu of trial by court-martial, was administratively correct and in conformance with the applicable regulations then in effect.  

2.  His court-martial sentence had been set aside, as a result of prejudicial information being introduced during the sentencing process.  It was at this time that the applicant requested discharge under the provisions of chapter 10 and he was granted the UOTHC discharge.

3.  The Board determined that both the characterization of service and the narrative reason for separation were appropriate considering all the facts of the case.

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

__emw__  __amc___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2000049361	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010111	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19931213	
DISCHARGE AUTHORITY	AR635-2000	
DISCHARGE REASON	A70.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.