MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 August 2001                  
	DOCKET NUMBER:   AR2000050028

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Ernest W. Lutz		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 discharge under other than honorable conditions (UOTHC) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that his UOTHC unjustly reflects his extension of service following reenlistment.

COUNSEL CONTENDS:  In effect, that the Board thoroughly review the applicant’s record and any additional documentation to ensure a fair and equitable decision.

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

He enlisted in the Regular Army on 2 October 1975 for a period of 3 years.  Following all military training, he was awarded military occupational specialty (MOS) 11C, Indirect Fire Infantryman and was assigned to Germany as his first duty station.  On 22 June 1978, he was honorably discharged for immediate reenlistment.  At the time of discharge, he had attained the rank of specialist/E-4 and had completed 2 years, 8 months, and 21 days of active military service.  

On 23 June 1978, the applicant reenlisted for a period of 6 years, his current MOS 11C, the Continental United States Station of Choice Option – Fort Ord, California, and a Selective Retention Bonus (SRB).

On 5 June 1980, the applicant was assigned to Korea.  He served in Korea until 2 June 1981. 

On 18 November 1980, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for violating a lawful general regulation by wrongfully purchasing in excess of the monthly dollar and quantity limitations imposed by ration control.  His punishment consisted of forfeiture of $100.00 pay per month and 7 days’ restriction.

On 14 January 1981, the applicant accepted an NJP for assaulting a sergeant and a Korean National.  His punishment consisted of reduction to specialist/E-4, forfeiture of $100.00 pay per month, and 30 days’ restriction.

On 16 July 1981, the applicant was assigned to Fort Polk, Louisiana.

At Fort Polk, on 19 August 1982, the applicant extended for a period of 17 months at the request and for the convenience of the government to accept an assignment to Germany.

On 15 November 1982, the applicant reported to duty with Headquarters and Headquarters Company, 1st Battalion, 52nd Infantry in the Federal Republic of Germany.  

On 9 September 1983, court-martial charges were preferred against the applicant for assaulting a private/E-2, wrongfully communicating a threat to injure the private, and wrongfully and unlawfully endeavoring to impede and influence an investigation.

On 28 September 1983, after consulting with legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200.  This request was made after counsel advised the applicant of the contemplated trial by court-martial, the maximum punishment, and the possible effects of an undesirable discharge.  The applicant attested to the fact that he fully understood that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he may be deprived of many veteran benefits under state law.  The applicant elected not to submit a statement in his own behalf.  

On 4 October 1983, the applicant’s company and battalion commanders recommended disapproval of his request for discharge under the provisions of chapter 10, AR 635-200 and that he be tried by general court-martial.  The brigade commander recommended approval of the chapter 10 request with a UOTHC discharge.

On 7 October 1983, the applicant’s request for discharge under the provisions of chapter 10, AR 635-200 was approved with a UOTHC and reduction in rank to private/E-1.  Accordingly, on 26 October 1983, the applicant was discharged after completing 5 years, 4 months, and 4 days of active military service and a total time of 8 years and 26 days.

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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

On 16 April 1987, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge. 

The Board noted that when the applicant reenlisted on 23 June 1978, he had one period of prior honorable service covering 2 years, 8 months, and 11 days and that he had been issued an honorable discharge for this period of service.  In view of this, the Board certified the DD Form 214 as a true copy and mailed it to the applicant.

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.  Furthermore, the applicant’s misconduct constituted a departure from the standards of conduct expected of soldiers in the Army and adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  These incidents of misconduct clearly diminished the quality of the applicant’s service below that meriting a general or honorable discharge.

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

__JH____  __MHM__  __EWL__  DENY APPLICATION

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

INDEX

CASE ID	AR2000050028	
SUFFIX		
RECON		
DATE BOARDED	2001/08/01	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1983/10/26	
DISCHARGE AUTHORITY	AR 635-200, c10	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.9405.0000	
2.		
3.		
4.		
5.		
6.