MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            5 April 2001                  
	DOCKET NUMBER:   AR2000050500

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Harry B. Oberg		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 (UOTHC) be upgraded.

APPLICANT STATES:  That he has spent fourteen years and three months in the U.S. Army with three honorable discharges and that he served with Company C, 701st Maintenance Battalion, 1st Infantry Division in the Vietnam Conflict from March 1969 to May 1969.  He also states that he worked his way through the ranks to the grade of E-6, and with a possible promotion to the grade of E-7, was assigned a seniority sequence number of 11243 by the Department of the Army Promotion Selection Board.  He further states that he elected to resign from the military because of his pending court-martial for selling sodas and food purchased from the U.S. Commissary to be resold for profits.  He states that he was accused of stealing food from the Mess Hall and that he “scrounged” food to feed his platoon, to include his commander, his executive officer, and his first sergeant.  Further, he states that the battalion commander requested a court-martial and he, in turn, requested a chapter 10, for the good of the service.  He claims that he worked hard to bring his platoon to be the best within the battalion and the second best maintenance shop within the VII Corps in West Germany.  He states that his motor officer knew everything about the incident, but he was not charged.  He states that his first sergeant also knew about the incident and was charged, but he put the blame on him.  Finally, he states that he was advised by his military and civilian lawyers regarding the chapter 10 and was told that the chapter 10 was better than having a conviction on his record.  In support of his application, he submits an addendum to his application, three DD Forms 214 (Report of Transfer or Discharge), two Honorable Discharge Certificates, his criminal history results from the Hawaii Criminal Justice Data Center, his resume’, seven training certificates, five character references, a letter from the Chief, Promotions Branch, U.S. Army Military Personnel Center, a Letter of Commendation and his recommendation for appointment as a 630A Automotive Repair Technician.

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

The applicant enlisted in the Regular Army on 6 July 1968 for a period of three years.  He completed basic and advanced individual training and served as a track vehicle repairman in the Republic of Vietnam from 23 February 1969 through 12 July 1969.  He reenlisted twice and completed three assignments overseas in Germany.  

On 20 December 1976, the applicant was convicted by a special court-martial for three charges of violating a lawful general regulation.  He was sentenced to be reduced to the grade of E-4 and forfeiture of $376.00 pay per month for six months.

The facts and circumstances pertaining to the applicant’s discharge proceedings are not in his personnel records.  However, his DD Form 214 (Report of Transfer or Discharge) indicates that he was discharged on 8 September 1982, under the provisions of Army Regulation 635-200, chapter 10, administrative discharge conduct triable by court-martial, and was issued an under other than honorable conditions discharge.  He had 3 years, 7 months, and 13 days of creditable service on his current enlistment and 10 years, 6 months and 20 days of prior active service.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board within its 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 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.

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 acknowledges in his own statement that he had military and civilian legal counsel who advised him to accept administrative discharge in lieu of court-martial.  There is also no indication that the applicant’s request was made under coercion or duress.

2.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer and a civilian lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

3.  The contentions of the applicant have been noted by the Board.  However, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

4.  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.

5.  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______  CLA_____  HBO_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000050500	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010405	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19820908	
DISCHARGE AUTHORITY	AR635-200,chapter 10	
DISCHARGE REASON	For the good of the service – in lieu of trial by court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.